People v. Wallace

31 A.D.3d 1041, 818 N.Y.S.2d 684

Opinions

Cardona, P.J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 25, 2005, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the second degree.

Defendant was arrested in May 2004 and charged with a single count of criminal sale of a controlled substance in the second degree after allegedly selling a quantity of cocaine to a confidential informant (hereinafter Cl) under the control of federal and state law enforcement. Following a jury trial, defendant was convicted as charged and sentenced to six years to life in prison. He now appeals, challenging certain evidentiary rulings made by County Court and the severity of his sentence.

We begin with the evidentiary issues, specifically, defendant’s claim that Drug Enforcement Agent John Rice was erroneously permitted to testify as to prior drug sales allegedly perpetrated by defendant. The circumstances giving rise to that testimony began with defendant’s cross-examination of Rice, wherein defense counsel attempted to impugn the credibility of the Cl by asking Rice about how the Cl came to be an informant and what he had revealed to Rice about his experience in the narcotics trade. After testifying that the Cl had been involved in “numerous” drug sales prior to becoming an informant, Rice began to discuss the “debriefing” process that the Cl had undergone. In so doing, Rice testified that the Cl had claimed to have a supplier named “Juan” whom he had been dealing with for approximately one year. After more details concerning the Cl’s transactions with Juan were revealed, defense counsel and Rice engaged in the following exchange:

“Q And how about other people? Was [the Cl] buying and selling from other people as well?

“A Yes.

“Q [The Cl] was a pretty big dealer wasn’t he?

“A I don’t know if he was a big dealer in the scheme of things but he had other sources of supply for cocaine.

“Q How many other sources of supply for cocaine did he have besides Juan?

“A I believe one.

“Q All right. Now is he buying an ounce or two a week from this other individual?

“A He was buying up to an ounce at the time.

“Q A week?

“A I wouldn’t say a week. He was a sub-source. Juan was his main source.

“Q Sub or whatever, getting an ounce a week from this other source, correct?

“A He indicated that when Juan wasn’t available he would go to the other source.”

Although defense counsel’s cross-examination of Rice continued from that point, it did not include further questioning concerning the Cl’s previous suppliers and, consequently, the topic of the identity of the Cl’s “sub-source” was carefully avoided by defense counsel. However, following a colloquy between County Court and counsel, the People were permitted to ask Rice, on redirect examination, the name of the Cl’s subsource. In response, Rice identified defendant as the other source, thereby implicating him in additional, uncharged narcotics sales.

Notably, defendant’s involvement with prior narcotics sales with the Cl was not a subject of the People’s Sandoval proffer and said information was also not discussed during the combined Molineux/Ventimiglia/Sandoval hearing held in this matter. Nonetheless, the People contend that, inasmuch as defendant “opened the door” to introduction of the evidence at issue, County Court did not abuse its discretion in permitting Rice to identify defendant as the Cl’s subsource on redirect examination.

Under the particular circumstances herein, we cannot agree. While we appreciate that “[t]he scope of redirect examination falls within the trial court’s sound discretion” (People v Greene, 13 AD3d 991, 993 [2004], lv denied 5 NY3d 789 [2005]; see People v Massie, 2 NY3d 179, 183 [2004]), that discretion is not unfettered. Thus, although the People may be entitled to further inquiry to correct or clarify misleading or incomplete testimony brought out on cross-examination by a defendant (see e.g. People v Mateo, 2 NY3d 383, 425-427 [2004]; People v Greene, supra at 993), “ ‘[b]y simply broaching a new issue on cross-examination, a [defendant] does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect’ ” (People v Massie, supra at 183, quoting People v Melendez, 55 NY2d 445, 452 [1982]). On the contrary, a “trial court should normally ‘exclude all evidence which has not been made necessary by the [defendant’s cross-examination]’ ” (People v Melendez, supra at , quoting 6 Wigmore, Evidence § 1873, at 672 [emphasis omitted]), particularly where, as here, the subject matter of the People’s inquiry concerns prejudicial evidence of prior uncharged criminal acts.

As noted above, the relevant portion of defense counsel’s cross-examination of Rice concerned the credibility of the Cl and sought to portray him as an upper-echelon narcotics trafficker whose testimony was not to be trusted. Although the cross-examination purposely left one question unanswered— namely, the identity of the Cl’s second supplier—that omission did not mislead the jury as to a material fact or constitute incomplete testimony requiring remedied action by the People.

Footnotes

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* In our opinion, the identification of defendant as the Cl’s subsource was entirely unrelated to the question of the Cl’s credibility and, accordingly, the People’s elicitation of the supplier’s identity on the redirect examination of Rice was not warranted (see People v Ryan, 17 AD3d 1, 5-6 [2005]; People v Rivenburgh, 1 AD3d 696, 700 [2003], lv denied 1 NY3d 579 [2003]).

Although County Court attempted to ameliorate the prejudice to defendant via limiting instructions to the jury, inasmuch as the prior bad act evidence here concerned crimes which were essentially identical to the charged offense (see People v Park, 12 AD3d 942, 944 [2004]; see also People v Foster, 295 AD2d 110, 113 [2002], lv denied 98 NY2d 710 [2002]; cf. People v Sandoval, 34 NY2d 371, 377-378 [1974]), we cannot conclude that the error herein was harmless beyond a reasonable doubt (see People v McCalla, 243 AD2d 819, 819 [1997], lv denied 91 NY2d 835 [1997]; see generally People v Crimmins, 36 NY2d 230 [1975]). We do not find that the prejudice inherent in revealing defendant’s identity as the Cl’s prior supplier was somehow ameliorated by the fact that the same information was alluded to in the People’s direct examination of Rice. In our view, that prior revelation—as well as the People’s subsequent reemphasis in summation of defendant’s role as a supplier to the Cl—simply made it more likely that the jury relied upon the information improperly, notwithstanding the cautionary instructions of County Court (see generally People v Calabria, 94 NY2d 519, 523 [2000]). Moreover, we are not persuaded that the evidence of defendant’s guilt was overwhelming. The Cl was the only witness to testify as to the particulars of the transaction; however, defendant effectively placed his credibility at issue by highlighting, among other things, the details of his cooperation agreement with police. The various law enforcement witnesses who testified did not directly observe the transaction and, although the Cl was wired during the operation, no officers testified concerning what they specifically overheard as the sale allegedly took place. In addition, the tape recording of the events in question was often garbled and the Cl was frequently called upon to testify as to his recollection of conversations in order to span inaudible portions of the recording, including the crucial moment when money was purportedly exchanged for the cocaine. Under these circumstances, we conclude that there is a “ ‘reasonable possibility that the error might have contributed’ to defendant’s conviction” (People v Ryan, supra at 6, quoting People v Ayala, 75 NY2d 422, 431 [1990]; see generally People v Crimmins, supra).

In light of our disposition, discussion of defendant’s remaining contentions is rendered academic.

Mercure, Mugglin and Lahtinen, JJ., concur.

Significantly, inasmuch as defendant’s purported prior drug sales to the Cl were not the subject of any pretrial Molineux or Sandoval ruling, defendant’s failure to explore the identity of the CI’s second supplier on cross-examination cannot be construed as an attempt to wield a favorable court ruling as a sword (compare People v Mateo, supra at 425-427; People v Rojas, 97 NY2d 32, 34-35 [2001]).