People v. Flanagan

Appellate Division of the Supreme Court of New York

People v. Flanagan

47 A.D.2d 959, 367 N.Y.S.2d 98, 1975 N.Y. App. Div. LEXIS 9431

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 1975

StatusPublished

Cited by7 cases

This text of 47 A.D.2d 959 (People v. Flanagan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Flanagan, 47 A.D.2d 959, 367 N.Y.S.2d 98, 1975 N.Y. App. Div. LEXIS 9431 (N.Y. Ct. App. 1975).

Pincite

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 14, 1974, convicting him of criminally selling a controlled substance in the first degree and in the second degree, upon a jury verdict, and imposing sentences. Judgment affirmed. One of the crucial questions bearing on the propriety of defendant’s conviction is whether in delivering the prohibited drugs to the undercover police officer he was acting as a seller or whether he merely procured the drugs from another as the agent for the police. The Trial Justice properly charged the jury that if defendant were merely acting as an agent in procuring and delivering the drugs he could not be found guilty (cf. People v Hingerton, 26 NY2d 790, 792; People v Pierce, 40 AD2d 581; and People v Pulliam, 28 AD2d 786). Since defendant’s principal contention was that he was acting as an agent and that the proof that tended to show that he was a seller was equivocal, it was proper for the People to introduce tapes of conversations with defendant to show the intent with which he had acted (People v Condon, 26 NY2d 139; People v Marrin, 205 NY 275, 280; People v Mann, 31 NY2d 253; People v Calvano, 30 NY2d 199) and this is so even though the uncharged crimes shown by the tapes dealt with events which occurred subsequent to the dates of the crimes set forth in the consolidated indictments (People v Shulman, 80 NY 373, n, p 376; Richardson, .Evidence [Prince, 10th ed], §177 et seq.). The racial references in the [960]*960tapes should have been redacted. While there is no justification for the District Attorney’s insistence that the tapes go in "as is” or in the trial court’s refusal to sustain defendant’s objection, under the proof in this case it is clear beyond a reasonable doubt that the references were not prejudicial. Upon a close or closer issue of fact such improper conduct could well result in a reversal. Hopkins, Acting P. J., Martuscello, Cohalan, Brennan and Shapiro, JJ., concur.

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Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 14, 1974, convicting him of criminally selling a controlled substance in the first degree and in the second degree, upon a jury verdict, and imposing sentences. Judgment affirmed. One of the crucial questions bearing on the propriety of defendant’s conviction is whether in delivering the prohibited drugs to the undercover police officer he was acting as a seller or whether he merely procured the drugs from another as the agent for the police. The Trial Justice properly charged the jury that if defendant were merely acting as an agent in procuring and delivering the drugs he could not be found guilty (cf. People v Hingerton, 26 NY2d 790, 792; People v Pierce, 40 AD2d 581; and People v Pulliam, 28 AD2d 786). Since defendant’s principal contention was that he was acting as an agent and that the proof that tended to show that he was a seller was equivocal, it was proper for the People to introduce tapes of conversations with defendant to show the intent with which he had acted (People v Condon, 26 NY2d 139; People v Marrin, 205 NY 275, 280; People v Mann, 31 NY2d 253; People v Calvano, 30 NY2d 199) and this is so even though the uncharged crimes shown by the tapes dealt with events which occurred subsequent to the dates of the crimes set forth in the consolidated indictments (People v Shulman, 80 NY 373, n, p 376; Richardson, .Evidence [Prince, 10th ed], §177 et seq.). The racial references in the [960]*960tapes should have been redacted. While there is no justification for the District Attorney’s insistence that the tapes go in "as is” or in the trial court’s refusal to sustain defendant’s objection, under the proof in this case it is clear beyond a reasonable doubt that the references were not prejudicial. Upon a close or closer issue of fact such improper conduct could well result in a reversal. Hopkins, Acting P. J., Martuscello, Cohalan, Brennan and Shapiro, JJ., concur.

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Bluebook (online)

47 A.D.2d 959, 367 N.Y.S.2d 98, 1975 N.Y. App. Div. LEXIS 9431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-flanagan-nyappdiv-1975.

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