| People v Ricketts |
| 2015 NY Slip Op 01474 [125 AD3d 893] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ricardo Ricketts, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, KeithDolan, and Michael Brenner of counsel), for respondent.
Appeals by defendant from (1) a judgment of the Supreme Court, Kings County(Ingram, J.), rendered January 26, 2012, convicting him of criminal sale of a controlledsubstance in the fourth degree, criminal possession of a controlled substance in theseventh degree, resisting arrest, and obstructing governmental administration in thesecond degree, upon a jury verdict, and imposing sentence, and (2) an amended sentenceof the same court imposed February 8, 2012.
Ordered that the judgment and the amended sentence are affirmed.
The defendant's current challenges to certain remarks made by the prosecutor duringthe trial are unpreserved for appellate review, as the defendant failed to raise thesespecific arguments by timely objections (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]; People vKing, 119 AD3d 819, 820 [2014]; People v Edwards, 118 AD3d 909, 910 [2014]; People v Floyd, 97 AD3d837 [2012]), and we decline to reach these issues in the exercise of our interest ofjustice jurisdiction (see CPL 470.15 [6] [a]). While the defendant did object tothe prosecutor's comment regarding the application of the "falsus in uno" principle to thedefendant's testimony, that objection was based on a ground different from the one nowadvanced by the defendant, and the trial court adequately addressed the objection byproperly instructing the jury regarding the "falsus in uno" principle and its applicabilityto all witnesses.
Likewise, the defendant's contention that his right of confrontation was violatedwhen the trial court permitted two undercover police officers to testify anonymously attrial is unpreserved for appellate review (see CPL 470.05 [2]; People v Smith, 26 AD3d396 [2006]; People vMontoya, 13 AD3d 557, 558 [2004]; People v Alvarez, 278 AD2d 332,333 [2000]), and we decline to reach the issue in the exercise of our interest of justicejurisdiction (see CPL 470.15 [6] [a]).
The sentence imposed, as amended, was not excessive (see People v Suitte,90 AD2d 80 [1982]). Mastro, J.P., Roman and Maltese, JJ., concur.
Hall, J., dissents and votes to reverse the judgment and the amended sentence, andorder a new [*2]trial, with the following memorandum:The defendant allegedly sold four methadone pills to an undercover officer during abuy-and-bust operation conducted near a methadone clinic in the East New York sectionof Brooklyn. At trial, both the primary undercover detective, who allegedly purchaseddrugs from the defendant (hereinafter the buying detective), and a "ghost" undercoverdetective, who watched the transaction secretly to ensure the buying detective's safety,testified against the defendant at trial anonymously by revealing only their respectiveshield numbers.
The right to cross-examine a witness regarding his or her identity is an importantaspect of a criminal defendant's constitutional right of confrontation. In Smith vIllinois (390 US 129 [1968]), the United States Supreme Court held, "when thecredibility of a witness is in issue, the very starting point in 'exposing falsehood andbringing out the truth' through cross-examination must necessarily be to ask the witnesswho he is and where he lives. The witness' name and address open countless avenues ofin-court examination and out-of-court investigation. To forbid this most rudimentaryinquiry at the threshold is effectively to emasculate the right of cross-examination itself"(id. at 131, quoting Pointer v Texas, 380 US 400, 404 [1965]).
In People v Stanard (42 NY2d 74 [1977]), the Court of Appeals set forth thesequential steps that must be followed whenever the People seek to shield a witness'sidentity. "First, the People must 'come forward with some showing of why the witnessshould be excused from answering the question. Excuse may arise from a showing thatthe question will harass, annoy, humiliate or endanger the witness.' Then the burdenshifts to the defense 'to demonstrate the materiality of the requested information to theissue of guilt or innocence.' Finally, the trial court must balance the defendant's right tocross-examination with the witness's interest in some degree of anonymity" (People v Waver, 3 NY3d748, 750 [2004], quoting People v Stanard, 42 NY2d at 84).
Here, outside of the presence of the jury, the Supreme Court asked the buyingdetective if he would be concerned for his safety if he testified in open court by name,and the buying detective responded affirmatively. The court then allowed the buyingdetective to testify anonymously. According to the court, the People demonstrated thebuying detective's justifiable fear for his safety, and the defendant failed to demonstratethat the identity of the buying detective was material in any way to the issues raised attrial. The ghost detective testified anonymously, without any inquiry pursuant toStanard.
In my view, the People did not satisfy their burden of showing the need foranonymity with respect to the buying detective (see People v Waver, 3 NY3d at750). The cursory inquiry conducted by the Supreme Court failed to establish that thebuying detective had any justifiable basis for his fear. Furthermore, as the buyingdetective testified that he had retired by the time of trial, he could not have had anyconcerns regarding ongoing investigations (cf. People v Remgifo, 150 AD2d 736[1989]). Moreover, the Supreme Court failed to conduct the third step of theStanard inquiry, which is to "balance the defendant's right to cross-examinationwith the witness's interest in some degree of anonymity" (People v Waver, 3NY3d at 750).
In addition, no inquiry was conducted to evaluate the ghost detective's need foranonymity. The ghost detective testified that, at the time of trial, he had transferred out ofthe Brooklyn North Narcotics division and was working as a patrol officer in Manhattan.Thus, there is no indication on this record that the ghost officer was concerned aboutongoing undercover investigations. Under these circumstances, permitting thesedetectives to testify anonymously deprived the defendant of his constitutional right toconfront the witnesses against him.
Furthermore, in my view, the cumulative effect of certain other errors deprived thedefendant of his right to a fair trial. The defendant was charged, inter alia, withcommitting two minor sales of narcotics. During opening statements, however, theprosecutor stated several times that the defendant was operating an illegal drug business,and even contrasted the defendant's illegal business with the lawful businesses in theimmediate area (see People v Figueroa, 211 AD2d 811 [1995]). However, thedefendant was not charged with conducting a narcotics business and, consequently, [*3]the prosecutor's comments were improper (see People vValderama, 161 AD2d 820 [1990]; People v Jones, 62 AD2d 356, 357-358[1978]).
In addition, evidence was admitted at trial that the defendant was in possession of thesum of $238 at the time of his arrest, in addition to the sum of $20 in prerecorded buymoney. Since this defendant was only charged with two minor drug sales, this evidencewas inadmissible (see People v Lewis, 262 AD2d 584, 585 [1999]). Theprejudicial effect of the admission into evidence of the defendant's possession of $238,which suggested that the defendant had engaged in other uncharged narcotics sales,clearly outweighed whatever probative value it may have had (see People vEdwards, 199 AD2d 334 [1993]).
This error was compounded by the prosecutor's reference to the $238 sum severaltimes in summation. In particular, the prosecutor stated that the $238 sum represented thedefendant's drug earnings for the day of his arrest. Under the circumstances of this case,where the defendant was charged with two minor drug sales, one of which resulted in anacquittal, this statement was inappropriate because it improperly suggested to the jurythat the defendant was a drug dealer who had made other, uncharged drug sales duringthe day in question (see People v Lewis, 262 AD2d at 585).
While these issues may not be preserved for appellate review, I would review them inthe exercise of this Court's interest of justice jurisdiction (see CPL 470.15 [6]).Since the errors described above have deprived the defendant of his constitutional rightsof confrontation and to a fair trial, I believe that the exercise of this Court's interest ofjustice jurisdiction to reach the defendant's unpreserved contentions is warranted.
Accordingly, I respectfully dissent and vote to reverse the judgment and the amendedsentence, and order a new trial.