Steven Banks, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.
Gonzalez, P.J., Mazzarelli, Renwick, Richter, Gische, JJ.
Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered May 4, 2010, as amended May 12, 2010, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to concurrent terms of 7½ years, unanimously reversed, on the law, and the matter remitted for a new trial.
Defendant was arrested in a "buy and bust" operation. According to the trial testimony of an undercover police officer, defendant approached him on 114th Street near Seventh Avenue and offered him drugs. The officer handed defendant pre-recorded buy money, and defendant gave him a purple bag containing what was later determined to be crack cocaine. The undercover officer radioed his team that there had been a "positive buy, " and gave a description of the suspect. Shortly thereafter, a detective saw defendant, who matched the description of the seller, on 114th Street and detained him. When the undercover officer saw defendant in police custody, he radioed confirmation that defendant was the seller.
The detective who detained defendant testified at trial that upon a search, he recovered from defendant's right pant's pocket five Ziploc bags, each containing what appeared to be drugs that matched the drugs purchased by the undercover officer. He gave the seized Ziploc bags to another detective present at the scene who testified that the pre-recorded buy money was not recovered from defendant.
Defense counsel asked the two detectives to explain how they generally determine that drugs purchased in an undercover operation match the drugs subsequently recovered from the suspect. One of the detectives testified that the determination is made when a "supply... resembles... exactly that which was allegedly sold." The other explained that it is when the drugs possessed by the defendant are "similar to what the undercover had purchased." Defense counsel then asked him to clarify that it is not merely "similar" but "exactly the same" packaging. Defense counsel suggested, and the detective confirmed, that "[i]f they were blue top, hard plastic vials with a picture of a cartoon character on it, a matching stash would have... the same color cap, the same cartoon character."
Defendant testified in his own defense. He stated, among other things, that "[the police] said... they found three vials of crack, " and that he saw a "paper that they claim that it was in, and I didn't understand that because when my lawyer showed it to me and said they was purple but the one they allegedly tested was white, so... I don't even know what's really going on." Defendant denied possessing or selling any drugs on West 114th Street on the day in question.
Defense counsel opened his summation by reminding the jury that in his opening arguments he predicted three issues that would be borne out by the testimony and would throw a shadow of reasonable doubt on defendant's guilt: (1) whether defendant had a female accomplice; (2) whether the undercover officer radioed his colleagues to report that defendant and his alleged accomplice had crossed the street to join a group of people; and (3) the failure of the police to recover the pre-recorded buy money. With respect to the first issue, defense counsel noted that his cross-examination of the undercover officer raised a question as to whether the officer had omitted any mention of a female accomplice in his testimony to the grand jury. With respect to the second, counsel noted the arresting detective's testimony that he never received information from the undercover that defendant and his accomplice crossed the street where they joined a group of people, and that the second detective confirmed the communication with great equivocation. Addressing the third issue, defense counsel called it the "single most important piece of evidence that a case such as this could possibly have."
In addition, defense counsel argued that the purple Ziploc bag of crack sold to the undercover did not match the Ziplocs recovered from defendant. Counsel asked for permission to open the bags containing the drugs to display to the jury, but the court denied the request. Counsel then urged the jurors to examine the evidence themselves, arguing that if the jury compared the purchased Ziploc to the ones found on defendant at the time of his arrest, it would find that they are "vastly different." He stated that the purchased Ziploc "doesn't even look purple and I am not sure there is a zip on it. You see how big it is.... You take a good close look at it." Counsel also urged the jury to "take a good, close look at the... supposed matching stash.... [T]ake a look at... the size of these glassine envelopes. Not even remotely close to the same size. Not even remotely close to the same color. This one is clear and even though they keep calling these purple, in fact, this looks like pink to me." Counsel again emphasized the relative difference in the sizes of the bags and asserted that "[t]he five bags that were supposedly taken out of the change pocket of [defendant] don't look anything at all like the bag that [defendant] is alleged to have sold[, ] yet from the witness stand the police proudly proclaim we got the drugs; we got the matching stash; we got him."
During deliberations, the jurors sent out a note stating, with regard to the Ziplocs, that "[t]he sale bag is folded in such a manner that makes it difficult for us to determine whether it's the same as the other five bags. In order to make that determination, which seems important to us, we need to see the sale zip unfolded with the other five zips unfolded, too, arranged so that we can make a reliable comparison." The court accommodated the jury's request, and while the jurors were in the courtroom, a court officer cut open the previously heat-sealed bags containing the Ziplocs, and, in accordance with defense counsel's request, unfolded the bags.
After the jury returned to the jury room, defense counsel acknowledged that, contrary to his summation argument, all the bags did match. He stated, "I now see for, frankly, the very first time that a bag, a very small plastic bag, that does indeed appear to be the same color as... the five bags in People's exhibit 6." Counsel noted that he had asked to open the bags during his summation, and "at the time this outside bag was folded so many times as to virtually secrete and hide the smaller [Ziploc] bag... that's about fingernail sized." Counsel further stated that his inability to see the stash clearly caused him to argue a point that was "at least somewhat inaccurate.... I made a major point of saying that this bag did not match the other five. And part of that argument was based on the fact that the way the bag was folded over... it seemed to hide or secrete the fact that the purple or pink bag was, indeed, under two or more layers of folded plastic. Now that I see that it was open... indeed, this bag that's alleged to be the sale bag does match the bags that were alleged to have been recovered from [defendant]." Counsel noted that if he had been able to open the bags during summation, "I might not have made the argument I did make."
The court responded that defense counsel was an experienced attorney in drug cases and "certainly could have requested inspection of those items at any time during the past eight or nine months or however long this case is pending, " and, for safety reasons, the court could not, without any advance notice, allow him to open the bags in the middle of his summation. The court added that the People's theory had always been that the purchased drugs matched the drugs found with defendants, and that when the court looked at the evidence, "the Ziplocs match was clear to me." Defense counsel noted that, even if he had asked to view the evidence earlier, it would have been shown in the unopened bags in which they were initially brought into court. The court responded, "I don't know if that's so."
The following morning, in response to a request from the jury, the court read the arresting officer's testimony regarding his observations of the alleged female accomplice at the time of the arrest. The jury subsequently sent another note stating that it had reached a verdict on one count but was deadlocked on the remaining two counts. The court instructed the jury to continue deliberating. Thereafter, the jury requested and heard all of the undercover officer's testimony, as well as the definition of "reasonable doubt." At the end of the day, the jury sent a note stating that it still could not reach a unanimous verdict on at least one count. The court delivered a charge pursuant to Allen v United States (164 U.S. 492 ). After deliberating throughout the ...