People v. Fay , 444 N.Y.S.2d 629 ( 1981 )

Judgment, Supreme Court, New York County (Kleiman, J.), rendered October 22,1979, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and sentencing him to a term of imprisonment of nine months, affirmed. In colloquy at the trial’s inception, out of the jury’s presence, concerning the defense strategy to the effect that the gun was planted on defendant because there was a weak robbery case, defense counsel, while acknowledging that the fact of defendant’s arrest for robbery (which charge was later dismissed) would come before the jury, argued that this “does not open the door to all aspects of the robbery”. The trial court was of the view that testimony concerning the robbery was admissible so that the jury would not speculate as to why the police stopped defendant and his companion. The jury returned and the People called as their first witness, Officer Sheehan. He was asked if he responded to a police radio call at approximately 4:30 a.m. on December 3, 1978, regarding a robbery. No objection was made and the witness responded affirmatively. Next the prosecutor inquired as to whether there was a description of the perpetrator or perpetrators. Defense counsel for the first time objected. The trial court overruled the objection and in clear, unequivocal and commonsense language instructed the jury that the robbery testimony was being admitted as background information to help them understand “the picture”, that it was not admitted as proof of the facts concerning the robbery, that defendant was not accused of the robbery, that no inference was to be drawn against defendant concerning the robbery and that the jury might “draw a favorable inference, as far as the defendant is concerned, by reason of the fact he is not being charged with the crime of robbery”. At the trial’s conclusion the court delivered an able and articulate charge admonishing the jury that the defendant was not on trial for robbery. “[E]vidence of uncharged crimes or of unrelated immoral behavior is inadmissible if offered solely to raise an inference that the defendant is of a criminal disposition and is therefore likely to have committed the crime charged * * * However, such evidence may be admitted as background if it is relevant to establish or explain some material fact * * * The extent to which such evidence may be received is a matter lying largely within the discretion of the trial court which must carefully weigh its probative value against the danger that it will unduly prejudice the defendant. Whether there was an abuse of the trial court’s discretion will necessarily depend upon the circumstances of the particular case” (People v Le Grand, 76 AD2d 706, 708-709). In light of defendant’s “plant” defense, the interrelationship between the motives of the police in stopping defendant and the prior robbery, and having due regard for the trial court’s initial instructions to the jury at the beginning of the trial and in his charge at the end of the trial relevant to the robbery testimony, it is clear that defendant was not deprived of a fair trial. Regarding the trial court’s able and clear instructions to the jury, there is, of course, no presumption or inference that the jury is composed of unreasonable people or people who would cavalierly disregard such admonitions in the discharge of their function. Trial by jury is an integral part of our system of justice. We must give credit to the common sense and reason of our fellow man who sits as a juror in fulfillment of the responsibilities which our system of justice bestows on him. As final observations, it is noted that both the prosecution and the defense were in complete agreement at the beginning of trial that the fact of the robbery and the eventual dismissal of that charge were to be brought before the jury. The inextricable relationship between the robbery and the subsequent police conduct in stopping defendant at about 4:35 a.m. in the vicinity of 135th Street and Lenox Avenue, coupled with pragmatic considerations of how to effectively try the defendant on the ensuing gun charge prompts acknowledgment that the reality of the complete “picture” would have to be conveyed to the jury under appropriate guidance from the trial court. To do otherwise under the circumstances herein would result in conveying to the jury a partial “picture” which, in its lack of particulars, might well place the People at a disadvantage in that the jury would speculate in “filling in” the picture to conform with their commonsense perception of reality when confronted by the defendant’s claim that the gun was “planted.” The full “picture” of the robbery was clearly not presented solely to raise an inference that the defendant is of a criminal disposition and is therefore likely to have committed the crime. The instructions issued to the jury not only removed any potential prejudice to defendant, but even gave the defendant a generous advantage, in that the jury was told that they might draw an inference favorable to defendant in that he was not charged with the crime of robbery. Concur — Kupferman, Sullivan and Lupiano, JJ.