People v. OliveraPeople v. Olivera
Steven Banks, The Legal Aid Society, New York City (John Schoeffel of counsel), and Arnold & Porter LLP, New York City (Ken L. Hashimoto of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City (Angela DiGiglio, Michael S. Morgan and Megan S. Mueller of counsel), for respondent.
KAVANAGH, J.
Defendant is entitled to a new trial because the trial court erred by denying his request to charge the jury on the lesser included offense of criminal possession of a controlled substance in the seventh degree.
On March 31, 2004, the New York City Police Department assigned a field team of 10 to 12 police officers to conduct a buy/bust drug operation in the vicinity of Lexington Avenue and 110th Street. A police officer working undercover wore a transmittеr and was in radio contact with members of the field team throughout the operation. According to the officer, she came into contact with defendant and Eduardo Cestalano at approximately 2:50 P.M. and after a brief conversatiоn told them she was “looking for manteca” (Spanish for heroin). Defendant asked her how many she wanted, to which she responded “let me get two.” Defendant then handed the officer two glassine envelopes of heroin each stamped with the wоrd “Holiday.” Following defendant‘s instruction, the officer gave $20 in prerecorded buy money to Cestalano and walked away.
As she left the area, the officer immediately notified the field team by radio that she had made a positive buy and provided a description of defendant and Cestalano as well as their approximate location. Detective Pabon observed the two men walking away from the undercover officer and kept them under surveillance until they were taken into custody by other members of the field team. As defendant and Cestalano were being searched at the scene, five glassine envelopes of heroin bearing the stamp “Holiday” were recovered on the ground next to defendant‘s left foоt. The prerecorded money used by the undercover officer to purchase the drugs was not recovered.
A trial court is obligated to submit a lesser included offense for the jury‘s consideration where the party requesting the charge shows “that it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense” (People v Glover, 57 NY2d 61, 63 [1982];
Criminal possession оf a controlled substance in the seventh degree is undisputedly a lesser included offense of criminal possession of a controlled substance in the third degree (People v Cabrera, 268 AD2d 316, 317 [2000], lv denied 94 NY2d 945 [2000]). The only difference between the two crimes is that criminal possession in the third degree carries with it the additional element that the drug in question be possessed “with intent to sell it” (
Jurors are accorded broad prerogatives as to their evaluation of the credibility of evidence introduced at trial (People v Bleakley, 69 NY2d 490, 495 [1987]). It is for the jury to decide what weight is to be given to evidence and if reasonable questions are raised concerning the credibility of such evidence, the jury has it within its power to completely disregard that evidence in arriving at a verdict. Here significant gaps existed in the prosecution‘s proof from which a juror could reasonably conclude that the transaction culminating in the sale of heroin did not take place. In that regard, I respectfully disagree with the dissent‘s assertion that the undercover officer‘s testimоny regarding negotiations culminating in the sale is uncontroverted. In fact, the undercover‘s credibility was the principal issue raised at trial by the defense and was under constant attack throughout. The jury‘s failure to arrive at a verdict on the criminal sale of a controlled substance charge is stark proof that those reservations about the undercover‘s credibility did indeed exist. For example, the prerecorded buy money was not found on the person of defendant or Cestalano despite the fact that both men were under surveillance from shortly after they left the undercover until they were placed under arrest. The prosecution was never able to put forward a credible explanation based on the evidenсe introduced at trial that accounted for the failure of the police to recover that money from Cestalano or defendant after they were taken into custody and searched.2 Also, no member of the field team testified to оverhearing any part of the undercover‘s conversation with defendant negotiating the terms of the sale despite the fact that the field team had the officer under radio surveillance throughout the entire transaction. From all accоunts, the equipment was functioning and operational, and in fact was used by the undercover officer to notify members of the covering team that the sale had taken place and that defendant and his companion were leaving the area. These omissions in the prosecution‘s proof could clearly provide a juror with a reasonable basis for concluding that the events culminating in the sale of drugs may not have taken place. Absent evidence of the sale, all that is left which connects the defendant to any criminal activity are the five glassine envelopes of heroin found on the ground next to his feet.3 The possession of such a modest amount of heroin, absent more,
would certainly support a finding that it was possessed by defendant for his own consumption and not for sale (compare People v Rizzo, 279 AD2d 314 [2001], lv denied 96 NY2d 805 [2001]).
To be clear, a lesser-included charge of simple possession will nоt be required in every prosecution of sale or possession with intent to sell where buy money is not recovered or the undercover‘s testimony about the transaction is uncorroborated. In this case, however, the arresting officer gave tеstimony that was, by itself, sufficient to support a simple possession charge, even if the undercover‘s testimony was discredited. Under the circumstances, criminal possession of a controlled substance in the seventh degree represented a reasonable view of the credible evidence presented at trial, and it should have been submitted.
Therefore, the judgment of Supreme Court, New York County (Ronald A. Zweibel, J.), rendered December 17, 2004, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, should be reversed, on the law, the judgment vacated, and the matter remanded for a new trial.
Williams, J. (dissenting). The trial сourt properly declined to submit criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree. Viewing the evidence in the light mоst favorable to defendant, there is no reasonable view of the evidence to support a finding that he committed the lesser offense but not the greater (People v Scarborough, 49 NY2d 364, 368-370 [1980];
This intent was duly established notwithstanding the failure to recоver the prerecorded buy money used, or to corroborate the transaction successfully via Kel transmission, and notwithstanding the jury‘s inability to reach a verdict on the sale count. Failure to recover the prerecorded buy money is not an infrequent occurrence, inasmuch as drug traffickers, in response to police tactics, have developed systematic techniques to quickly and covertly dispose of such evidence (see generally People v Brown, 97 NY2d 500, 505-507 [2002]; People v Kelsey, 194 AD2d 248, 252-253 [1994]). Such failure does not preclude a valid conviction (see People v Aguayo, 200 AD2d 541, 542 [1994], lv denied 83 NY2d 963 [1994]; People v Johnson, 187 AD2d 404 [1992], lv denied 81 NY2d 842 [1993]); it is merely an issue for the trier of fact to consider in weighing the evidence of guilt generally and the credibility of the testifying police officers (see People v Benjamin, 292 AD2d 191 [2002], lv denied 98 NY2d 635 [2002]; People v Cuevas, 232 AD2d 234 [1996]; People v Billups, 171 AD2d 513, 513-514 [1991], lv denied 78 NY2d 920 [1991]). For similar reasons, failure to offer corroborating evidence provided by Kel equipment, when used, is not fatal to a conviction. Due to the teсhnical limitations of Kel equipment and the inherent unpredictability of a buy-and-bust operation, it may not provide evidence in a particular case. Similarly, the failure to convict defendant for a contemporaneous drug sale is not fаtal to his conviction of possession with intent to sell (People v Freeman, 298 AD2d 311, 311-312 [2002]; People v Vaughn, 242 AD2d 458 [1997], lv denied 91 NY2d 837 [1997]; People v Cruz, 197 AD2d 630, 631 [1993], lv denied 82 NY2d 923 [1994]).
Contrary to defendant‘s assertion, People v Devonish (6 NY3d 727 [2005]) is not controlling here. In that case, involving second-degree burglary and its lesser included offense second-degree criminal trespass, the defendant testified as to his alleged innocent intent in entering the premises. In addition, there was testimony by a contractor that he stored tools on the premises and that one of the burglary tools found in the defendant‘s possession when he was discovered on the premises definitely belonged to the contractor, and that the other tools might have also. This record evidence allowed the jury to reasonably infer that the defendant may not have entered the premises with an intent to commit a crime. In the instant mat-
Saxe, J.P., and Friedman, J., concur with Kavanagh, J.; Williams and Buckley, JJ., dissent in a separate opinion by Williams, J.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered December 17, 2004, reversed, on the law, the judgment vacated, and the matter remanded for a new trial.