People v. Hernandez , 510 N.Y.S.2d 129 ( 1987 )

Judgment, Supreme Court, New York County, rendered January 4, 1985, (Frank J. Blangiardo, J.), convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degre (Penal Law § 220.16), and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), is modified, on the law, to the extent of reversing the first two convictions of criminal sale and possession with intent to sell, and directing a new trial as to those counts, and as so modified, the judgment is otherwise affirmed.

In our view, the trial court committed error in permitting excessive cross-examination of defendant as to damaging collateral matter and then allowing the People, on rebuttal, to adduce prejudicial testimony which exceeded appropriate limits.

At trial, the People’s evidence showed that on June 21, 1984, a four-man police team, consisting of Sergeant Michael Barron and Officers James Orlando, Frank Bose and Michael Bisogna, was engaged in undercover narcotics surveillance on the Lower East Side of Manhattan. In the late afternoon, Officers Orlando and Bose were manning an observation post on the roof of 42 Clinton Street, a five- or six-story building. Sergeant Barron remained below with Officer Bisogna in a police taxicab equipped to maintain two-way radio contact with the rooftop observers. At about 4:00 p.m., Orlando spotted defendant (known to him as "Gimpie”) through his 7 X 50-power binoculars and saw him engage in two suspicious transactions which were followed up by the taxicab team but resulted in no arrest. Then, at about 5:30 p.m., Orlando observed a male Hispanic, later identified as Edwin Rosario, approach defendant and appear to hand defendant cash in exchange for a glassine envelope. In response to Orlando’s radio alert with a description of the buyer, the taxicab team arrested Rosario within seconds. Officer Bisogna searched Rosario and recovered one glassine envelope marked "Force 44” from Rosario’s right shoe as well as 37 hypodermic instruments. Thereupon, the rooftop team descended from the roof, arrested defendant, and found 21 blue-tinted/glassine envelopes stamped with the logo "Force 44” in defendant’s shoe. Both the glassine envelope taken from Rosario and the 21 envelopes recovered from defendant were analyzed and found to contain cocaine.

After the People rested, defendant took the stand and testified that as an unemployed pauper since 1982 he had become addicted to cocaine. To support his habit he became a professional shoplifter who stole clothing from department stores and then sold his loot on the streets. In 1980 and 1982 he had been convicted of grand and petit larceny. In addition to other arrests and convictions, he had been arrested by Officer Bisogna on May 1, 1984, and had pleaded guilty to criminal possession of a controlled substance. On June 21, 1984, the day in question here, he had purchased drugs from a seller on the corner of Ridge and Stanton Streets at about 4:30 p.m., paying $105 for 21 $5 (nickel) glassines of cocaine, these funds coming from his sale of six pairs of jeans and five shirts all stolen and then sold in the same area. He put these "nickel bags” in his sneakers for his own consumption; he was not planning to sell them to anyone else and had never sold drugs to anyone. On cross-examination, over defense objection, defendant was pressed with the details of three recent episodes in which he allegedly sold drugs on May 1, May 12, and May 15, 1984. Defendant denied any involvement with drug selling on these occasions.

Thus the stage was set for the People’s rebuttal case which proceeded over vigorous defense objection. Recalled to the stand, Officer Bisogna testified that on May 1, 1984, he was walking down Rivington Street when he saw defendant holding glassine envelopes in his hand surrounded by a crowd. When defendant sighted the officer, he threw the glassine envelopes to the ground. (This episode resulted in defendant’s arrest and conviction, by way of plea to criminal possession of a controlled substance.) From Officer Orlando, as well as Officer Bisogna, the jury learned that on May 12, 1984 at 6:00 p.m., these officers disguised in clerical garb, watched from the rectory of a neighborhood church as defendant appeared some 15 feet away holding a clear glassine bag containing about 50 glassine envelopes. Customers lined up in front of defendant exchanging money for glassine' envelopes. Standard police procedure was to arrest buyers first, and these officers arrested a buyer who possessed glassine envelopes but Hernandez escaped. On May 15, 1984, Officer Orlando, together with an officer new to the jury, Dorian Irizarry, was manning an observation post with Officer Bisogna and Sergeant Barron on duty below. The observing officers saw defendant make three sales of contraband. A buyer was arrested with glassine envelopes as was Hernandez who was found in possession of three glassine envelopes containing cocaine.

To permit this massive rebuttal with its evidence of multiple narcotics sales by defendant on three other occasions was highly prejudicial to defendant and constituted error. It is true that "[rjebutting evidence * * * means, not merely evidence which contradicts the witnesses on the opposite side and corroborates those of the party who began, but evidence in denial of some affirmative fact which the answering party has endeavored to prove.” (Marshall v Davies, 78 NY 414, 420; see, People v Harris, 57 NY2d 335, 345.) Here the rationale permitting rebuttal adopted by the trial court was that defendant had opened the door to such proof by his assertion that he never sold narcotics. But, in reversing a conviction for the sale of narcotics in People v Crandall (67 NY2d 111, 114), the Court of Appeals held: "Nor does a defendant 'open the door’ to admission of other crime evidence in rebuttal by his testimony that he made no sale of narcotics, that he knew the person to whom he is alleged to have made the sale for which he is on trial to be an undercover officer and had assisted him until asked to engage in an illegal act, after which the officer and several of his colleagues threatened him with arrest, such rebuttal testimony being relevant only to defendant’s criminal character and not to any element of the crime charged or in refutation of any affirmative fact proved by defendant.”

The Crandall court also observed (at p 117): "It was also error to allow cross-examination and rebuttal testimony concerning the seven other transactions listed above. Here, as in People v Rahming (26 NY2d 411), defendant confined his direct testimony to a denial that he had sold any drugs to the undercover officer and his version of his relationship with the officer. Nothing in that testimony involved the seven sales concerning which defendant was cross-examined. 'Thus, it was error for the prosecutor on cross-examination to have ranged beyond the defendant’s direct examination "in order to lay a foundation for the tainted evidence on rebuttal” ’ (People v Rahming, 26 NY2d, at p 418, supra, quoting People v Miles, 23 NY2d 527, 543). Nor can cross-examination to the extent permitted be justified as impeachment by evidence of specific acts tending to impair credibility.”

In our view, Crandall (supra) cannot be distinguished from the case at bar by the circumstance that the defendant witness’ denial there related only to sales made with the undercover officer directly involved in the prosecution instead of, as here, sales made to total strangers to the action. If anything, the basis for preclusion would appear stronger in the latter instance. In Crandall, the defendant’s affirmative assertion was not merely exculpatory—he went considerably further and attacked the character of the police witnesses by asserting that they were framing him in retaliation for his refusal to commit criminal acts on their behalf. Yet even this was insufficient to "open the door” to the kind of rebuttal which was permitted here.

In any event, as we found in People v Andujar (61 AD2d 755), "the over-all result” of this rebuttal evidence regarding multiple sales wholly unconnected to the single transaction charged "was to deprive the defendant of a fair trial.” In this case defendant, prepared to meet the charge of a single drug sale, was abruptly obliged to address three more uncharged sales in the closing stages of the trial. In the face of this rebuttal proof defendant was placed at a severe disadvantage. Since the three crimes testified to on rebuttal had never been presented to a Grand Jury, there was, of course, no testimony before that body available for impeachment purposes. (People v Rosario, 9 NY2d 286.) This disability was inadequately evaluated by the Trial Judge before permitting such extensive rebuttal. Nor did defendant have adequate time to prepare a "defense” to these new "charges”. Indeed, defendant’s motion for a continuance to seek the testimony of Susan Sergeant, a "customer” in one of the three additional sales, was summarily denied, leaving open the possibility that defendant’s constitutional right to call witnesses in his defense was abridged.

It should be noted that this rebuttal testimony cannot be justified on the theory that it was appropriate to show defendant’s intent to sell or to negative any claim of accident or mistake (cf. People v Molineux, 168 NY 264). For such a purpose, the evidence would have to be tendered as part of the People’s case-in-chief. Here, on the contrary, this evidence was received in rebuttal by the court solely to affect defendant’s credibility, and the jury was so instructed. This was tantamount to a showing that defendant had a criminal propensity. It may also be noted that the People had adequate Molineux proof from the two prior transactions that Officer Orlando observed from the roof prior to defendant’s arrest.

Despite the foregoing, there is no need to reverse defendant’s conviction for simple possession of narcotics (criminal possession of a controlled substance in the seventh degree), since guilt of this charge was virtually admitted by defendant as a fundamental part of his defense strategy.

Accordingly, defendant’s convictions for criminal sale and possession with intent to sell must be reversed, but his conviction for criminal possession of a controlled substance in the seventh degree is affirmed. Concur—Fein, Milonas and Wallach, JJ.