People v. Colon

Appeal by defendant from a judgment of the Supreme Court, Kings County (Beldock, J.), rendered March 28, 1978, convicting him of criminal sale of a controlled substance in the second degree (three counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and a new audibility hearing and trial are ordered. It was improper for the trial court to permit the jury to use transcripts of Spanish language tapes of three alleged drug sales which were essentially prepared by the undercover officer who participated in the taped conversations, as an aid to listening to the tapes (see People v Pagan, 80 AD2d 924). Moreover, it was improper to permit the undercover officer to supplement the transcripts used by the jury. At the new audibility hearing, the interpreter should not use the undercover officer’s transcripts of the tapes while evaluating the audibility of those tapes (see People v Mincey, 64 AD2d 615). Moreover, at the new trial, if the tapes are found to be competent evidence, the undercover officer’s transcripts should not be used by the jury as an aid to listening to the tapes (see People v Mincey, supra). Upon the new trial the jury should be instructed to consider the evidence adduced as to each sale separately “in order to avoid commingling of the crimes and homogenization of the evidence in the jury’s deliberations” (see People v Harris, 51 AD2d 937; see, also, People v McNamee, 71 AD2d 559; People v Range, 49 AD2d 832). Gulotta, J. P., Thompson, Brown and Niehoff, JJ., concur.