People v. Blakeney

219 A.D.2d 10, 638 N.Y.S.2d 642, 1996 N.Y. App. Div. LEXIS 2110
Appellate Division of the Supreme Court of the State of New York·Decided March 7, 1996·Published·Cited by 5 cases

Opinions

OPINION OF THE COURT

Sullivan, J. P.

The main issue on appeal revolves around whether the People improperly impeached defendant’s credibility by cross-examining him with respect to an unrelated pending criminal charge (see, People v Bennett, 79 NY2d 464, 468). We hold that, the door having been opened to such inquiry by defendant’s testimony on direct examination that he had never before seen the person with whom he was arrested and charged with selling drugs, the cross-examination about his subsequent arrest with his codefendant 12 days later at the same location as is involved in the instant matter was proper. In arguing that inquiry into this pending charge was improper, defendant, as does the dissent, proceeds on a faulty premise, i.e., that the questions about defendant’s subsequent arrest related to a collateral matter and were intended solely for the purpose of impeaching his general credibility. The inquiries were directly relevant to the defense defendant proffered and thus the People’s cross-examination could not be circumscribed by limitations placed on inquiries relative to collateral matters, such as pending criminal charges. (See, e.g., People v Bennett, supra, at 468.) Since no impropriety was committed in this regard either by the prosecutor or the trial court and defendant’s other claims of error are without merit, we affirm the judgment of conviction.

On November 4, 1992, at 5:55 p.m., Detective Jerry Eng, an undercover police officer with the Manhattan South Narcotics District, approached defendant and Shakira Fleming, standing together, on Ninth Avenue between 37th and 38th Streets in Manhattan and asked if defendant had any "nickels”, i.e., five dollar vials of crack cocaine. Defendant answered that he had "dimes”, ten dollar vials of crack cocaine, and asked Eng how many he wanted. When Eng said "two”, defendant turned to Fleming and told her to give the officer "two”. Fleming handed the officer two black-topped vials of crack cocaine in exchange for $20 in prerecorded buy money.

Sergeant Golden, a member of the undercover officer’s backup team, who had received Eng’s radioed description of [12] the sellers and the location of the sale, arrested defendant and Fleming minutes later, at the precise location described. Eng subsequently confirmed the identity of both defendant and Fleming as he drove by the arrest scene. Twenty-three blacktopped vials of crack cocaine were recovered from Fleming; defendant was found to be in possession of $39, including the prerecorded buy money. Both defendant and Fleming were subsequently jointly indicted for, inter alia, criminal sale of a controlled substance in the third degree.

Taking the stand in his own behalf, defendant testified that after seeing a movie at a theater on 42nd Street and Broadway, he was standing in front of a sandwich shop on 38th Street and Broadway, where he had just made a purchase, when Sergeant Golden ordered him against the wall. Speaking on his walkietalkie, Golden told someone to "bring the girl down”, prompting defendant to ask, "What girl are you bringing down?” Other police officers then brought a woman, whom defendant later learned was Shakira Fleming, and stood her next to him against the wall. Defendant testified that he had never seen this woman before.

Similarly, on four occasions during cross-examination, defendant asserted that he had never seen Shakira Fleming before his arrest on November 4,1992. After this testimony, the court, at a sidebar conference, asked whether the People would elicit from defendant, as had been discussed earlier in the proceedings, that he had been arrested with Shakira Fleming 12 days after his arrest in this case. The prosecutor responded that he intended to defer inquiry into that subject and call a rebuttal witness to testify to the subsequent arrest. The court rejected that proposal, noting that the People "have to give [defendant] an opportunity to respond” before calling a rebuttal witness. Thus, the court ruled, if the prosecutor intended to produce such a witness, he first had to ask defendant "whether he had occasion to see Shakira Fleming again and whether he was arrested twelve days later”. The dissent finds that the prosecutor’s cross-examination in this area was at the court’s direction. The court’s sidebar reference to an earlier discussion by the parties concerning the pending charge, however, strongly suggests that the matter was discussed prior to defendant’s decision to testify and that the court was merely following up on a problem previously made known to it. Defense counsel registered a general objection only.

The prosecutor then proceeded to ask defendant again if November 4, 1992 was the first time he had ever seen Shakira [13] Fleming, to which defendant responded affirmatively. After a series of general objections by defense counsel, the prosecutor then asked:

"Q. Isn’t it true on November 16th you again were arrested with Shakira Fleming on Ninth Avenue near 38th Street for Criminal Sale of a Controlled Substance in the Third Degree?
"A. Yes.
"Q. So you were arrested twelve days later with her?
"A. Yes.”

Other than the court’s asking defendant to explain how "it happen[ed] you were arrested on 38th Street and Ninth Avenue twelve days later with the same person you were arrested with on November 4th,” no other questions were asked on that subject.

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People v. Blakeney, 219 A.D.2d 10, 638 N.Y.S.2d 642, 1996 N.Y. App. Div. LEXIS 2110 (N.Y. Ct. App. 1996).

219 A.D.2d 10 (People v. Blakeney) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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