People v. Luciano

64 A.D.2d 614, 406 N.Y.S.2d 528, 1978 N.Y. App. Div. LEXIS 12391

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 24, 1975, convicting him of two counts of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. No issue has been presented with respect to the facts. At the trial there was testimony that an undercover officer, Michael D. McCann, bought heroin from defendant on two occasions. A back-up team provided security for the officer and subsequently made the arrest. Officer McCann was the only witness who was present during the sale of the narcotics. He described how he met defendant and how defendant sold him packets of heroin on two separate days. Over the objection of defense counsel, the officer was permitted to testify as to what he had reported to members of the back-up team after the sales were made and after the defendant’s arrest. That testimony substantially repeated the facts of the admissible testimony already given by Officer McCann and clearly was improper bolstering, hearsay and highly prejudicial. It is significant that during its deliberations, the jury asked that that testimony be reread. Accordingly, there must be a new trial (see People v Trowbridge, 305 NY 471; People v Quiles, 59 AD2d 950; People v Napoletano, 58 AD2d 83). Martuscello, J. P., Latham, Shapiro and O’Connor, JJ., concur.