People v. Beato

124 A.D.3d 516, 3 N.Y.S.3d 6

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2015
• Docket: 13385 424/10
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J.), rendered January 24, 2011, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, and sentencing him to an aggregate term of one year, affirmed.

The Confrontation Clauses of the United States and New York Constitutions (US Const 6th, 14th Amends; NY Const, art I, § 6) prohibit testimonial evidence of statements made by an out of court declarant, unless the witness is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination (Crawford v Washington, 541 US 36, 59 n 9 [2004]). Where, however, the testimonial statements are being used for purposes other than establishing the truth of the matter asserted, they may be admitted. This includes hearsay statements that are admitted for the purpose of completing a narrative and explaining police actions to prevent jury speculation (Tennessee v Street, 471 US 409, 415 [1985]; People v DeJesus, 105 AD3d 476, 476 [1st Dept 2013], lv granted 22 NY3d 1198 [2014]).

In this observation sale case, an officer testified that two of the persons who made apparent drug purchases from defendant and his alleged accomplices told the officer that they had, in fact, purchased drugs but had swallowed and thereby disposed of them. These claimed purchasers were never identified by name. Although the court instructed the jury that the statements of the otherwise unidentified buyers were not being received in evidence for their truth, but only to explain police actions, the facts of the case did not warrant any such explanation (compare e.g. People v Rivera, 96 NY2d 749, 751 [2001]). We reject the People’s argument that this evidence tended to explain why the police arrested defendant and his codefendants at a particular point in time. The jury was well aware that the police made the arrests after observing a series of apparent drug sales. The timing of the arrests was not at issue, and there was nothing mysterious about the unfolding events that could have led to speculation by the jury. Thus, the nonhearsay purpose of the evidence was barely relevant, and any probative value was plainly outweighed by the danger that, regardless of the court’s limiting instruction, the jury would treat the nontestifying buyers’ statements as proof that drug selling had, in fact, occurred (see United States v Reyes, 18 F3d 65, 70-71 [2d Cir 1994]).

We likewise reject the People’s argument that the statements were not testimonial for Confrontation Clause purposes. The circumstances objectively indicated that the primary purpose of the police interrogation of the two alleged buyers was “to establish or prove past events potentially relevant to later criminal prosecution” (Davis v Washington, 547 US 813, 822 [2006]), and there was nothing that even remotely resembled an “ongoing emergency” that would qualify the buyers’ statements as nontestimonial (id.).

Nevertheless, we find that the error was harmless beyond a reasonable doubt. Confrontation Clause violations are subject to a constitutional harmless error analysis (People v Hardy, 4 NY3d 192, 198 [2005]), and a review of the entire record demonstrates that the that there is no reasonable possibility that the error might have contributed to the conviction (People v Crimmins, 36 NY2d 230, 237 [1975]).

Even without the hearsay statements, there was overwhelming evidence that defendant acted in concert with his codefendants to commit the crimes for which he was convicted. The information leading to defendant’s arrest was obtained by an investigatory team of seven police officers that surveilled defendant’s and codefendants’ activities over the course of several hours. Officers observed defendant crouched down as he placed something inside a fence. A Ziploc bag containing drugs was later recovered from the approximate location by the fence where defendant had been seen. The evidence also showed defendant speaking with codefendants, Guny Nunez and Edgar Blanco, for approximately 20 minutes as the three men huddled around a backpack, later found to contain 2.479 grams of crack. Defendant was observed speaking with individuals who approached him and then directing them by nodding and pointing towards Blanco. Blanco was then observed retrieving an item from the spot in the fence where defendant had previously concealed something, handing it to the suspected buyers and receiving something in exchange. Based on their observations, the officers stopped suspected purchasers. One person was found to have a Ziploc containing crack on the roof of his mouth. Another man was found with drug paraphernalia, still warm from recent use. The last suspected buyer was stopped after the police observed him hand Blanco something in exchange for something Blanco removed from the fence. The suspected buyer was found carrying six Ziploc bags containing crack cocaine. As the events were ongoing, defendant approached Blanco several times and was observed alerting the codefendants as officers converged on the scene. In addition, while we do not believe the court should have admitted the out of court declarations made by two other alleged buyers into evidence at all, the court instructed the jury that their statements could not be considered for their truth. Under these circumstances, there is no reasonable possibility that the improperly admitted hearsay statements contributed to the conviction.

We also find that the verdict was based on legally sufficient evidence and was not against the weight of the evidence. We have examined defendant’s other arguments and find them unavailing.

Concur — Sweeny, Andrias, Moskowitz and Gische, JJ.