Lead Opinion
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered September 6, 2013, upon a verdict convicting defendant of the crimes of criminal sale of controlled substance in the third degree and criminal possession of a controlled substance in the third degree.
Following his alleged sale of crack cocaine to a confidential informant (hereinafter Cl) on October 9, 2012, defendant was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Defendant was thereafter convicted as charged and sentenced, as a second felony offender, to concurrent prison terms of 12 years, plus three years of postrelease supervision. Defendant now appeals.
We disagree with defendant’s contentions that his convictions were not supported by legally sufficient evidence and were against the weight of the evidence. Defendant primarily maintains that the People failed to prove beyond a reasonable doubt that he was the person who possessed and sold the crack cocaine. He also challenges the Cl’s credibility.
Scott Gillis, a police detective, testified at trial that defendant became the target of a narcotics investigation following his presence at a September 27, 2012 controlled buy between the Cl and another individual at an apartment in the Village of Hudson Falls, Washington County. Thereafter, on October 9, 2012, the Cl arranged to purchase crack cocaine from defendant at the same location. After a search of the Cl confirmed the absence of contraband, he was provided with $100 of prerecorded buy money, equipped with an audio recording and transmitting device and dropped off by Gillis a few blocks from the residence. Gillis observed the Cl walk to the apartment building, although he did not see him enter the residence. According to the Cl, defendant and two other men were inside the apartment at the time of the sale. After a coded discussion
A verdict is legally insufficient where, viewing the record in the light most favorable to the prosecution, there is no “valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks and citation omitted]). As to defendant’s challenge to the weight of the evidence, given that an acquittal would not have been an unreasonable outcome, we must weigh “the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony while viewing the evidence in a neutral light and giving deference to the jury’s credibility assessments” (People v Gibson,
However, we find merit in the claim that defendant was deprived of a fair trial due to the cumulative effect of erroneously admitting evidence of prior uncharged crimes and the improper vouching by a witness for the People. “Evidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his [or her] past” (People v Alvino,
In their Molineux proffer, the People sought to introduce evidence of a September 24, 2012 meeting at the apartment among defendant, the Cl and others, during which defendant allegedly possessed a handgun and handled numerous bags of crack cocaine. They also included in their application the September 27, 2012 controlled buy at which defendant was present. County Court permitted evidence as to both events,
At trial, however, the Cl testified that defendant was not only present during the September 27, 2012 controlled purchase of crack cocaine, but that he had also participated in the transaction by providing the actual drugs. County Court denied defendant’s prompt motion for a mistrial, but otherwise sustained his objection and struck this portion of the Cl’s testimony, without further limiting instructions to the jury. In our view, this revelation was highly prejudicial, as it related to a recent uncharged crime that was nearly identical to the sale for which defendant was on trial (see People v Wallace,
Further prejudice resulted from the People’s redirect examination of Gillis, who stated that the Cl was “very reliable and very trustworthy.” After County Court overruled defendant’s objection, and characterized the testimony as “opinion,” Gillis elaborated that the Cl had “never given [him a] reason to not believe anything that [the Cl] is telling [him].” Allowing Gillis to vouch for the Cl’s credibility was clearly improper (see People v Guay,
In view of the fact that defendant was one of three people who could have sold the crack cocaine to the Cl during a transaction that was neither verbalized nor witnessed by anyone but the Cl, we cannot say that the proof of defendant’s guilt is overwhelming (see id. at 1043-1045), such that the errors at
Garry, J.R, and Rose, J., concur.
Notes
. Gillis testified that the Cl’s voice was the only voice that he could recognize from the audio recording.
. Notwithstanding defendant’s failure to make such a request, County Court should have provided appropriate limiting instructions to the jury (see People v Resek,
. The audio recording contained a conversation between defendant and the Cl regarding the sale of “dog food,” i.e., heroin. Defendant moved to redact those portions of the recording referring to dog food on the basis that the jury would incorrectly infer that the coded language concerned the crack cocaine sale with which defendant was charged. County Court denied defendant’s request and the People played the recording in full for the jury, neglecting to explain the term at issue. Defendant was then pressed to bring out the meaning of dog food during his cross-examination of the Cl in order to ameliorate any confusion resulting from leaving the term undefined.
Concurrence Opinion
(concurring). I agree that the cumulative errors identified by the majority warrant reversal of defendant’s conviction and the remittal of this matter for a new trial. Where the majority and I part company, however, is with respect to the evidence relative to defendant’s alleged possession of heroin. To my analysis, this uncharged criminal activity falls squarely within one or more of the recognized Molineux exceptions. Here, the confidential informant (hereinafter Cl) testified that, upon entering the apartment on the day in question, he observed defendant “sitting at the table with large amounts of heroin and crack cocaine in front of him.” Such testimony, in my view, was part and parcel of the Cl’s attempt to set the scene and provide context for the October 9, 2012 transaction, thereby providing necessary background information and/or completing the Cl’s narrative (see People v Rivera,
Although I agree that, under the particular facts of this case, the probative value of such evidence was outweighed by its prejudicial effect, thereby warranting the exclusion thereof, I write separately to make clear that not every casual, off-the-cuff reference to an uncharged crime constitutes reversible error. For example, it would be neither unusual nor surprising if, during the course of a controlled buy, a Cl or an undercover officer observed additional evidence of criminal activity beyond that with which a particular defendant ultimately was charged. Although any testimony relative to such uncharged criminal activity indeed should be part of the People’s Molineux application and must satisfy that two-part test in order to be admitted into evidence at trial, not every fleeting or isolated reference to uncharged criminal activity constitutes a Molineux violation, nor does the mere mention of an uncharged crime necessarily afford a basis upon which to reverse an otherwise valid conviction. And, to the extent that the majority’s decision suggests otherwise, I disagree.