People v. Davis

Carro, J. (dissenting).

In the interest of promoting the fair administration of our system of justice, I would exercise our discretion under CPL 470.15 (subd 3, par [c]) to reverse this conviction. (Cf. People v Dowdell, 88 AD2d 239 [per Ross, J.]; People v Cancel, 61 AD2d 497 [per Sandler, J.].) 11 Once again we are confronted with excessive prosecutorial zeal in what should have been a simple, straightforward drug possession case. As in Dowdell and Cancel, the evidence of guilt was very strong. A police officer with the Special Narcotics Unit first observed, for some time, defendant standing in front of an abandoned building, receiving a paper bag from one man and later dispensing a glassine envelope of white powder to a second man. A backup unit then arrested defendant, retrieving the bag (and its contents of 24 more glassine envelopes of heroin) from behind the stoop where the first officer had watched defendant hide it. Not a very complicated set of facts. H Despite an unfavorable (and, I think, incorrect) Sandoval ruling, allowing the People to inquire into the underlying facts of two prior arrests and two other prior convictions,* defendant chose to take the stand. His version of what occurred was, of course, much *795different, essentially characterizing himself as an innocent passerby mistakenly arrested. Defendant admitted his prior convictions and stated that at the time of his arrest he had been walking to a methadone clinic where he was under treatment. 11 Without question, this testimony opened the door for an attack upon defendant’s credibility, but the nature of the prosecutor’s cross-examination, running to over 57 pages in the record, was way out of proportion. For at least 31 of those pages defendant was questioned about his 20 years of heroin addiction. The prosecutor went into excruciating detail as to that it felt like to “shoot up”, what methadone was like, how much of either drug was needed and how many times a day, where he went to buy it, etc. All of this was not only unnecessary, it was a violation of subdivision (a) of section 23.05 of the Mental Hygiene Law, which provides that the “facts, proceedings, application or treatment relating to a person’s participation in a substance abuse program shall not be used against such person in any action or proceeding in any court.” (Emphasis supplied; accord People v Dowdell, 88 AD2d, at pp 244-245 [per Ross, J.].) H This cross-examination was also highly and impermissibly prejudicial. As the Court of Appeals has repeatedly explained, “[T]he prosecution may not prove against a defendant, a crime not charged in the indictment merely to establish that the defendant has a propensity to commit crimes so as to raise a presumption that he would be more apt to have committed the crime charged (People v. Goldstein, 295 N. Y. 61; People v. Molineux, [168 NY 264], supra). The probative value of such evidence is generally outweighed by the danger that its admission would create substantial danger of undue prejudice to the defendant and it will, therefore, be excluded (People v. Harris, 209 N. Y. 70).” (People v Condon, 26 NY2d 139, 143; see, also, People v Carmack, 44 NY2d 706, 707; People v Estrada, 83 AD2d 564; People v Figueroa, 62 AD2d 971; People v Ortiz, 51 AD2d 710.) ¶ As in some of the above-cited cases, defense counsel at trial made but a few superficial objections (cf. People v Dowdell, supra, at p 243; People v Figueroa, supra, at p 972 [Lupiano, J., dissenting]), and did not therefore, properly preserve the issue for review. (CPL 470.05, subd 2.) Nonetheless, I believe we have a responsibility as an appellate court to supervise the fairness of the proceedings we are asked to validate. Considering the simplicity and strength of the People’s case, I am mystified as to why the prosecutor felt it necessary to engage in these tactics. It is not possible to overlook them as merely harmless errors, however, since “[t]he right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right.” (People v Crimmins, 36 NY2d 230, 238 [quoted in People v Cancel, supra, at p 501].) It is for this reason that I would exercise the discretionary power we are vested with and reversed this conviction. H Accordingly, the judgment rendered February 24, 1981 in Supreme Court, New York County (Allen Murray Myers, J., at hearing, jury trial and sentence), convicting defendant of criminal possession of a controlled substance in the second degree, should be reversed and a new trial ordered.

These were a 1977 arrest for possession of a weapon and reckless endangerment; a 1971 arrest for possession of a dangerous drug; a 1972 arrest for burglary, resulting in a conviction for trespass; and a 1970 arrest and conviction for grand larceny. In addition, the court refused to automatically rule out cross-examination of defendant as to prior bad acts of a similar nature.