APPEAL by the defendant from a judgment of the County Court (Ralph T. Gazzillo, J.), rendered February 22, 2008, in Suffolk County, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
The opinion of the court was delivered by: Fisher, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
STEVEN W. FISHER, J.P., ANITA R. FLORIO, JOSEPH COVELLO and THOMAS A. DICKERSON, JJ.
The issue presented on this appeal is whether the admission of evidence that the defendant, a 65-year-old owner of a taxi service on trial for a single sale of cocaine, sold drugs to the same buyer on several prior occasions was error requiring a new trial. We hold that it was.
On April 20, 2007, at a bar in Westhampton Beach in Suffolk County, an undercover police officer allegedly saw the defendant hand a knotted clear plastic bag containing a white substance to another person in exchange for cash. The two men left the bar separately. Believing that the officer had witnessed a drug sale, police stopped the buyer's truck and recovered a knotted clear plastic bag containing what proved to be cocaine. The buyer inculpated the defendant, who was arrested some two hours later. At the time of his arrest, the defendant was not in possession of any drugs. He was subsequently charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The buyer was charged with a misdemeanor relating to his possession of the cocaine, but he agreed to testify for the prosecution in return for the dismissal of his case.
Before trial, the prosecutor made an application pursuant to People v Ventimiglia (52 NY2d 350, 361-362) for permission to elicit testimony from the buyer that, prior to the night in question, he had purchased narcotics from the defendant on 5 or 10 occasions. The prosecutor argued that such evidence was admissible because it was probative on the question of the identity of the defendant as the person who sold the drugs and as to "the absence of mistake." Defense counsel opposed the application, arguing that the defendant would not claim misidentification, but only that he did not sell drugs to the buyer that night. The County Court denied the prosecutor's application on the ground that the evidence of prior sales would be more prejudicial than probative. It advised the parties, however, that proof of the uncharged sales might become admissible in rebuttal depending on the evidence presented.
At trial, the buyer testified, inter alia, that he had called the defendant on the day of the charged sale and arranged to meet him at the bar, where he purchased one gram of cocaine from him for $80. On cross-examination, defense counsel sought to establish that the buyer had cooperated with the prosecutor and the police only to extricate himself from his own legal difficulty, and had named the defendant as the seller only because the police wanted him to do so. Additionally, in answer to a question posed by defense counsel, the buyer acknowledged that he knew that a misdemeanor possession charge was less serious than a sale charge.
When the cross-examination of the buyer was completed, the prosecutor renewed his application to introduce evidence of prior drug sales, arguing that the defense had "opened the door into a number of defenses, including mistake." The prosecutor maintained that, by asking the buyer about the difference in seriousness between a sale of drugs and misdemeanor possession, defense counsel had suggested that the buyer had sold the drugs to the defendant, rather than the other way around. According to the prosecutor, "[t]hat is a classic case of a mistake defense." The court agreed that the cross-examination had opened the door and, as a consequence, permitted the prosecutor to elicit from the buyer that he had purchased drugs from the defendant on "more than 10" prior occasions. The buyer testified that he would simply call the defendant and say, "[i]t's me." No discussion of price or quantity would be necessary. The court gave a limiting instruction regarding this evidence, telling the jury that an accused's "alleged commission of other bad acts or crimes is not admissible solely to establish a criminal disposition or propensity," that the defendant cannot be convicted of one crime because he or she committed another crime or bad act, and that the evidence was "admissible as necessary in order for [the jury] to understand other parts of the testimony . . . to complete the narrative or description of the events so as not to have those events received in a vacuum." The court stated that, even if believed, the testimony about prior drug sales "may not give rise to even an inference that [the defendant] committed any or all of the crimes charged in the indictment."
The prosecution's remaining witnesses were police officers. The undercover officer testified that, from approximately seven feet away, she saw the buyer walk up to the defendant in the bar and speak with him briefly. She then saw the defendant give the buyer a small clear plastic bag containing a white substance, and saw the buyer hand the defendant a sum of money. The testimony of other officers established that the police backup team had followed the buyer as he left the bar and drove away, and had stopped his vehicle, discovered the bag of cocaine, and placed him under arrest.
In its final instructions, the court repeated that the evidence of prior sales was not admitted to prove the defendant's propensity to commit the charged crimes, but to allow the jury to understand the buyer's relationship with the defendant and "to complete the narrative or description of the events so as not to have those events received in a vacuum." The jury convicted the defendant of both criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The court sentenced the defendant to two determinate prison terms, each of nine years, to run concurrently. On appeal, the defendant contends, inter alia, that the verdict was against the weight of the evidence, and that he was deprived of a fair trial by the admission of the buyer's testimony regarding uncharged sales.
When conducting an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 NY3d 342), we accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633). We are nevertheless constrained to reverse the judgment and order a new ...