| People v Minus |
| 2015 NY Slip Op 01901 [126 AD3d 474] |
| March 10, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Omar Minus, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M.Nursey of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Karen Schlossberg of counsel),for respondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J., atsuppression hearing; Cassandra Mullen, J., at jury trial and sentencing), rendered January4, 2012, convicting defendant of criminal possession of a controlled substance in thethird degree, and sentencing him, as a second drug felony offender, to a term of threeyears, unanimously reversed, as a matter of discretion in the interest of justice, and thematter remanded for a new trial.
One of the three police witnesses testified that he saw defendant ride a bicycle to astreet corner in a drug-prone area, have a quick conversation with another man, and thenhand the man a small, unidentified object in exchange for cash. The detective inferred,based on his narcotics training and experience, that this exchange was a drug transaction.After he transmitted a report of these observations to his field team, another detectivesaw defendant throwing drug packages toward his mouth, two of which landed on theground and were recovered by the police. The remaining packages entered defendant'smouth and were not recovered.
The trial court issued a pretrial Molineux ruling (People v Molineux,168 NY 264 [1901]) precluding the People from using the testimony about thehand-to-hand exchange for any purpose other than to explain the subsequent actions ofthe police, specifically noting that this testimony could not be used as a evidence ofdefendant's intent to sell the drugs found in his possession. The prosecutor "disregard[ed]. . . the court's rulings" (People v D'Alessandro, 184 AD2d 114, 119[1st Dept 1992], lv denied 81 NY2d 884 [1993]) by arguing that the jury couldconsider the exchange and the detective's view that it was a drug transaction as factorsrelevant to defendant's intent to sell.
Defense counsel made four general objections to that line of argument; the first twoobjections were overruled, and the other two were sustained without any timely requestfor further relief. Defendant's appellate challenge to the prosecutor's summation was notpreserved by defense counsel's general objections or a CPL 330.30 motion to set asidethe verdict. However, we review the issue in the interest of justice and find that theprosecutor's arguments "prejudic[ed] defendant's right to a fair trial" (see People vSandy, 115 AD2d 27, 32 [1st Dept 1986]).
[*2] Given that defendant's counsel prepared the defenseand cross-examined the three police witnesses under the assumption that the Peoplewould be precluded from using the detective's testimony about the exchange as evidenceof defendant's intent, the prosecutor's arguments rendered the trial as a whole unfair.Because of the court's pretrial ruling, under which the exchange was only relevant to thestate of mind of the officers, and not defendant's intent to sell, counsel had little or noreason to attempt to cast doubt on whether the exchange was actually a drug sale, orwhether it evinced an intent to sell the drugs that defendant was charged withpossessing.
The soundness of the pretrial ruling is not properly before us on this appeal. In anyevent, regardless of the soundness of the ruling, the prejudice here stems fromdefendant's detrimental reliance upon it.
The unfairness was not mitigated by the fact that the prosecutor obtained the court'spermission to contravene the Molineux ruling in summation, again after the closeof all evidence. Because of its timing, the court's modification of its prior ruling wasitself prejudicial error.
The error was not harmless, since there is a significant probability that defendantwould have been acquitted of the possession count if not for the challenged portions ofthe prosecutor's summations (see People v Crimmins, 36 NY2d 230, 242 [1975]).The hand-to-hand exchange was strongly probative of defendant's intent to sell, whichwas the central issue at trial. Although the court instructed the jury in the final charge anda supplemental charge not to consider the exchange for any purpose other than to explainthe police conduct, this did not eliminate the prejudicial effect of the prosecutor'sargument repeatedly urging the jury to consider the exchange as evidence of intent (see People v Riback, 13 NY3d416, 423 [2009]; People v Calabria, 94 NY2d 519, 523 [2000]). Althoughthe jury was obligated to disregard the prosecutor's arguments to which counsel'sobjections were sustained, the court's overruling the first two objections "enhanc[ed] thepossibility of prejudice" (People v Zlochevsky, 196 AD2d 701, 703 [1st Dept1993] [internal quotation marks and citation omitted], lv denied 82 NY2d 854[1993]).
In light of this determination, we decline to reach any other issues, except that wefind that the record supports the hearing court's denial of the suppression motion, andthat the verdict was based on legally sufficient evidence. Concur—Friedman, J.P.,Sweeny, Acosta, DeGrasse and Gische, JJ.