People v. Brown

71 A.D.2d 918, 419 N.Y.S.2d 732, 1979 N.Y. App. Div. LEXIS 13174

Opinions

—Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 20, 1978, convicting him of criminal possession of a controlled substance in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The theory of the prosecution at trial was that the defendant' possessed a bag containing heroin which he had thrown into Warwick Street in the course of a night-time chase of his vehicle by the police. The chase occurred when the defendant “sped away” after being stopped by the police for passing a red light. Officer Smith testified that he was operating a radio car with Officer Kozak as the recorder at about 9:45 p.m. on August 26, 1976; that the defendant’s vehicle passed a red light; that he motioned the defendant to pull over to the curb; that when he, Smith, alighted from his car to talk to the defendant, the latter "sped away”; that a high speed chase ensued, through the Borough of Brooklyn, for about 30 blocks; and that the defendant was finally apprehended after having stopped at an intersection. Defendant was found lying down on the seat of his car. During the chase both cars were going at speeds of more than 50 miles per hour and Smith lost sight of the defendant’s car more than once. He never saw anything thrown out of the defendant’s car. He recalled that Warwick Street was among the streets traveled in the course of the chase, and that defendant had turned left onto Warwick Street going south with the police car half a block behind him. At that time, Smith lost sight of the defendant’s vehicle. After apprehending the defendant for reckless driving and while on the way to the precinct, Smith left the car to attend to an emergency. Officer Kozak, on direct examination, testified that while the defendant’s car was speeding down Warwick, he observed defendant throw a white bag out of the car under a street light. The bag landed in the street right in front of the curb. After dropping Smith off, he took the defendant directly to the precinct and approximately 10 or 15 minutes later, he returned to Warwick Street. In the area of 169 Warwick Street, he recovered a white McDonald’s bag from a Mr. Maldonado. The bag contained decks of white powder which, upon analysis, proved to be heroin weighing two and one-quarter ounces. On cross-examination Kozak testified that he lost sight of the defendant’s car when it turned the corner onto Warwick Street, but that he saw the white bag come out of the driver’s side of the car in the middle of Warwick Street, about 200 to 250 feet from the corner of Arlington and Warwick. At the time the police car was about 200 feet behind the defendant’s car. He admitted that he could not say that the bag given him by Maldonado was the bag he had seen thrown from the car. He testified that he was given the bag by Maldonado in front of 169 Warwick Street which he said was in the middle of the block. He admitted that when he testified before the Grand Jury he stated that the bag was thrown in front of 169 Warwick Street, and then conceded that at the time of the incident he had not noted the address. Further cross-examination elicited an acknowledgement by Kozak that the precinct received a call about the bag having been found and giving the location. However, he denied that this information was given to him before he returned to the scene. He claimed to have returned to the scene alone. It also appeared that defendant was searched after he was arrested and that bookmaking slips were found on his person. Maldonado, a resident of Warwick Street, testified on direct examination that he was working on his car in front of his house at 176 Warwick Street when he heard a speeding car coming around the corner followed in a few seconds by a police car. Immediately after the two cars sped by, Maldonado had a conversation with a number of children playing near 169 Warwick. As a result of the conversation, he walked about 20 yards from his car to the vicinity of 169 Warwick. There he found a McDonald’s paper bag containing a number of little envelopes of white powder. Maldonado did not recall seeing any other bags lying in the area when he picked up the McDonald’s bag. He also found a gun near the bag.

* According to Maldonado, 169 Warwick is the second house from the corner of Arlington and Warwick, there being a garage between the corner house and number 169. Contrary to the testimony of Kozak, who indicated that 169 Warwick is 200 to 250 feet from the corner of Arlington and Warwick, Maldonado stated that 169 is only about 75 feet from the corner. After picking up the bag, Maldonado told his son to call the police. He waited until they arrived at which time he turned the bag over to Officer Kozak. Maldonado stated that Kozak came 10 to 15 minutes after he had told his son to call the police and that Kozak (contrary to Kozak’s version) was accompanied by another police officer. The last prosecution witness was Mary Martino, an elderly woman. She testified that she was sitting on the porch of her house at 167 Warwick Street, at about 10:00 p.m., when she saw a car go speeding by, followed by a police car; she was talking with her sisters at the time. She saw a bag thrown out of the first car onto the sidewalk. She did not recall seeing any other bags in the area. She did not see anyone pick up the bag, but she saw one of her neighbors whom she never identified by name or description, hand a bag to the police officers. Miss Martino testified that the bag had fallen in front of the house to the right of her house. Although she did not know the number of this house, she indicated that it was the second house from the corner of Arlington and Warwick. She stated, however, that 169 Warwick is the house on the left of her house. Defendant testified in his own behalf. He denied ever throwing anything from his car and stated that he sped away after the police signaled him to stop because they came toward him with their guns drawn. Defendant also testified that while at the precinct with Kozak, Kozak received a telephone call and told another officer that he had to go pick up a package. Defendant stated that Kozak subsequently returned and asked him if the package was his, which he denied. On cross-examination, and over objection, the prosecutor was permitted to ask defendant if at the time of his arrest he had in his possession $511, consisting of $280 in twenty dollar bills, $70 in ten dollar bills, $100 in five dollar bills, $4 in two dollar bills and $57 in one dollar bills. Defendant responded that he did not remember, but finally, when pressed, said, "if I could remember the exact money, all of it was five, it could have been $200.” This answer immediately led to the following exchange: "Q. In other words, you’re telling us you remember you had money on you, but it would have been anywhere from five to $500.00, you don’t know, is that what you’re telling us? A. Yes.” After this, the prosecutor attempted to develop further, again over objection, what defendant was doing with that much money at 10 o’clock at night. Defendant’s answer was that he might have seen something he wanted to buy, but that he could not remember. Further cross, over objection, developed that defendant had previously been stopped by the police for running a red light and had been hit on the head with a nightstick. He was taken to the precinct and reported the hitting to the lieutenant who responded that "his boys never did anything like that.” He did not make a complaint to the Civilian Complaint Review Board or to an attorney. Defendant testified that the experience had led him to panic when he was stopped by Kozak and Smith. At the outset, we note that we find the testimony of Officer' Kozak not credible. Officer Smith, the driver of the police car, never saw anything thrown from defendant’s car, although, according to Kozak, it was thrown from the driver’s side. In addition, Kozak testified that the bag was thrown when the car was 200 to 250 feet from the corner, but it is clear from the testimony of Maldonado that the bag landed in a spot that was only 75 feet from the corner. Moreover, if Kozak had actually seen the bag thrown from defendant’s car, it defies belief that he would not have brought defendant back to Warwick Street in an effort to retrieve it. Instead, according to Kozak, he first took defendant to the precinct and then returned alone to look for the bag. He denied that he returned to this scene because of a telephone call to the police station. His testimony that he returned alone was contradicted by the testimony of Maldonado who said that there were two police officers present, and by the testimony of Miss Martino who acknowledged the presence of more than one police officer. Disregarding the testimony of Officer Kozak, we nevertheless find that the evidence presented at trial was sufficient to prove defendant’s guilt beyond a reasonable doubt. Miss Martino saw a bag thrown from defendant’s car. Although she could not say that the white bag which the unidentified neighbor gave the police was the same bag which had been thrown from the car, she indicated that she had not seen any other white bags in the area. Maldonado similarly testified that he did not recall seeing any other bags in the area when he picked up the white bag. Moreover, although there appears to be conflicting testimony as to which house on Warwick Street is numbered 169, the physical description given by Miss Martino as to where the bag landed and by Maldonado as to where he recovered the bag are identical. Under all of the circumstances, we are convinced that there was sufficient identification of the bag. We are constrained, however, to order a new trial by reason of prejudicial prosecutorial conduct which deprived defendant of fair trial. First, the persistent effort of the prosecutor to have the jury infer that defendant was a dealer in heroin because of the amount of cash he had with him was clearly improper. In People v Jones (62 AD2d 356), the defendant was charged with a single sale of narcotics. There, as here, the trial was poisoned by proof that defendant had cash ($831) on his person when he was arrested. In holding that the proof thus elicited was manifestly prejudicial, the court noted that the only purpose for its introduction was to permit an inference by the jury that the possession of such an amount of currency was probative of the sale of illicit drugs as a business. Here, where the charge is drug possession and not drug sale, the error was even more egregious. Defendant was also prejudiced when the prosecutor brought out the fact that defendant had previously been arrested for a traffic infraction and in the further course of his questioning also elicited the fact that defendant claimed to have been hit on the head with a nightstick by the arresting officer. Based on that line of questioning, the prosecutor in his summation improperly suggested that defendant was a liar because he did not file a complaint with the Civilian Complaint Review Board. Had the evidence of guilt been overwhelming, we might have affirmed the judgment of conviction on the ground that defendant had not been substantially prejudiced (see People v Hamlin, 58 AD2d 631). However, since there were several instances of conflicting testimony, the judgment should be reversed and a new trial ordered. Lazer, J. P., Rabin and Margett, JJ., concur.

Apparently a weapon charge against defendant was dismissed.