To be argued byAttorney With No Name

NEW YORK SUPREME COURTAPPELLATE DIVISION: FIRST DEPARTMENT

_______________________

THE PEOPLE OF THE STATE OF NEW YORK

Respondent,

-against-

JUAN ALOU

Defendant-Appellant.

_______________________

BRIEF FOR DEFENDANT-APPELLANT

Attorney With No NameAttorney for Defendant-AppellantNew York, New York 10038212-577-0000

December 2014

TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………………..i

TABLE OF AUTHORITIES……………………………………………………………..iii

STATEMENT OF FACTS………………………………………………………………..1

I. Introduction………………………………………………………………..1II. The People’s Case…………………………………………………............1III. Summations……………………………………………………………….6 IV. Jury Deliberations and Verdict……………………………………………8

ARGUMENT……………………………………………………………………………...9

I. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE IT WOULD NOT HAVE BEEN UNREASONABLE TO FIND THAT APPELLANT WAS THE BUYER AND MR. NUROTA WAS THE SELLER GIVEN THAT OFFICER CROOK COULD NOT CLEARLY VIEW THE EXCHANGE, SERGEANT VALERIO FOUND DRUGS AND MONEY ON MR. NUROTA BUT DID NOT FIND DRUGS, MONEY, DRUG PARAPHRENALIA OR WEAPONS ON OR NEAR APPELLANT AND APPELLANT’S STATEMENTS TO OFFICER CROOK, DID NOT CONTAIN TERMS ABOUT SELLING AND WERE UNCORROBORATED……………………..9

A. Officer Crook was unable to clearly view the exchange because the exchange was quick, his vision was obstructed, he observed the exchange from a great distance away and the exchange was at night…………………………………………………………...10

B. Sergeant Valerio found drugs and money on Mr. Nurota but did not find any drugs, money, drug paraphernalia or weapons on appellant…………………………………….12

C. The statements appellant made to Officer Crook only indicate that appellant was a user of narcotics and does not indicate that appellant sold or intended to sell drugs to Mr. Nurota and because appellant did not use any terms about selling and the statements are uncorroborated…………………………………………………………………………...14

II. APPELLANT WAS DEPRIVED OF THE RIGHT TO A FAIR TRIAL BECAUSE THE COURT ADMITTED TESTIMONY OF AN UNCHARGED CRIME THAT ALLOWED THE JURY TO FIND THAT APPELLANT HAD THE PROPENSITY TO SELL DRUGS, THE PROSECUTOR INDUCED THE JURY TO FIND THAT APPELLANT SOLD DRUGS TO MR. NUROTA BASED ON THAT PROPENSITY INFERNECE AND THE PROSECUTOR SHIFTED THE BURDEN OF PROOF TO THE DEFENSE DURING THE PEOPLE’S SUMMATION………………………….15

A. The uncharged crime was inadmissible as a question of law because it was not probative of the material issue that defense counsel raised on cross-examination……..17

i

B. The uncharged crime was also inadmissible as a matter of discretion because the judge failed to exercise discretion and any internal balancing of the probative value and prejudicial impact of the uncharged crime by the judge would have been a clear error in judgment …………………….………………………………………………………......18

C. Prosecutor’s remark during summation that appellant was unemployed was also prejudicial and misleading.………………………………………………..……………..21

D. The Prosecutor shifted the burden of proof to appellant during People’s summation by asserting that defense counsel did not ask Officer Crook about the lighting conditions at Columbus Avenue………………………………………….............................................22

E. The court’s admission of the uncharged crime, the improper statement about appellant’s unemployment status and the burden shift during summation are harmful errors……………………………………………………………………………………..22

F. Appellant’s objections to the admission of the uncharged crime, the prosecutor’s improper statement and the prosecutor’s shift of the burden of proof are still preserved for review under the interests of justice……………………………………………………..28

CONCLUSION………………………………………………………………………… .32

ii

TABLE OF AUTHORITIES

In re Robert C, 232 A.D.2d 268 (1st Dept. 1996)……………………………….…...10,13

People v. Alvino, 71 N.Y.2d 233 (1987)………………………………………….16,18,19

People v. Anderson 35 A.D. 3d 871 (2nd Dept. 2006)……………………...…….25,26,30

People v. Ashwal, 39 N.Y.2d 105 (1976)………………………………………………..21

People v. Bleakley, 69 N.Y.2d 490 (1987)……………………………………………9,10

People v. Bolden 6 A.D. 3d 315 (1st Dept. 2004)………………………………………11

People v. Calabria, 94 N.Y.2d 519 (2000)……………………………………………....26

People v. Crandall, 67 N.Y.2d 111 (1986)………………………………………………19

People v. Crimmins, 36 N.Y.2d 230 (1975)……………………………………………..23

People v. Dowling, 75 A.D.3d 838, 839 (3rd Dept. 2010)……….…………………...12,13

People v. Fisher, 18 N.Y.3d 964. (2012)………………………………………………...27

People v. Gomez, 207 A.D.2d 310 (1st Dept. 1994).…………………………….…...11,12

People v. Mitchell, 229 A.D.2d 956 (4th Dept. 1996).……………………………….…..17

People v. Smith, 288 A.D.2d 496 (2nd Dept. 2001).………………….22,24,25,27,28,30,31

People v. Walters, 251 A.D.2d 433 (2nd Dept. 1998)……………………….…………...28

People v. Wilkinson, 71 A.D.3d 249 (2nd Dept. 2010)…………………......16,20,23, 24,25

C.P.L 470.15………………………………………………………………………….30,31

iii

STATEMENT OF FACTSINTRODUCTION

On December 15, 2012, at 10p.m. Officer Crook after receiving complaints about

drug dealing in the area the police were on the lookout for suspicious activity from the

roof of a nine story building more than 200 feet away and saw appellant Juan Alou, in the

span of one to three seconds exchange something with Mr. Nurota. Officer Crook used

binoculars that magnified his vision seven times, to see a single, small, unknown object

in appellant’s hands that he believed to be drugs. Sergeant Valerio recovered multiple

bags of crack cocaine and $216 in cash from Mr. Nurota. No evidence was introduced

about the lighting conditions where the exchange between appellant and Mr. Nurota was

made.

Appellant went into his residence 875 Columbus Avenue for fifteen minutes.

When appellant returned to the street Officer Crook notified Sergeant Valerio who

arrested appellant on 104th Street. As Sergeant Valerio approached appellant to make the

arrest he allegedly saw appellant extend his arm. Sergeant Valerio searched the area

where appellant was arrested, which was very bright with artificial light but he did not

find any drugs or money nor did he find any drugs or money on the appellant.

THE PEOPLE’S CASE

On December 15, 2012, at 10p.m.Officer Crook saw Mr. Nurota hand money to

appellant in exchange for a small object at 875 Columbus Avenue in upper Manhattan.

Tr. 314. Officer Crook was scanning for drug activity from a roof-top at the corner of

103rd Street and Columbus Avenue. Tr. 309-310. Using binoculars that magnified his

vision seven times, Officer Crook claimed that he saw minor details about appellant and

Mr. Nurota including their clothing, facial features, hair and facial hair. Tr. 311-315.

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Officer Crook also claimed that he saw the shape and color of the money Mr. Nurota

handed to appellant. Tr. 315. Officer Crook then observed Mr. Nurota walk to 103rd

Street and turn onto Manhattan Avenue. Tr. 317. Officer Crook did not see Mr. Nurota

talk to anyone else or pick anything up off the ground. Tr. 317. When Sergeant Valerio

arrested Mr. Nurota after he turned onto Manhattan Avenue he found two bags of crack

cocaine in his pocket. Tr. 402-03. Officer Crook identified appellant as the same man

who had met with Mr. Nuorta at 875 Columbus Avenue. Tr. 321.

THE DEFENSE CASE

Officer Crook claims to have seen appellant meeting with Mr. Nurota from a

distance of nine stories up, over 200 feet away, at night. Tr. 449-450. Officer Crook also

claims that in the span of one to three seconds he saw appellant exchange a single, small,

unknown object for an unknown sum of cash. Tr. 353. Officer Crook described the object

that was transferred as only being half an inch long and covered by the appellant’s hands.

Tr. 358. Officer Crook was also only able to view Mr. Nurota from the back and the side

during the exchange. Tr. 354. At no point did Officer Crook see appellant take drugs out

of his pocket or out of a bag. Tr. 356. After the exchange Mr. Nurota began walking

away. Tr. 280. Officer Crook radioed Sergeant Valerio and told him to arrest Mr. Nurota

who had just turned from 103rd street onto Manhattan Avenue. Tr. 317. When Sergeant

Valerio arrested Mr. Nurota, he found multiple bags of crack cocaine in his pocket. Tr.

402-03.

When Officer Crook returned his attention to appellant he saw appellant enter the

building at 875 Columbus Avenue. Tr. 317. Fifteen minutes later officer Crook saw

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appellant leave the building. Officer Crook radioed Sergeant Valerio that appellant had

begun walking on 104th street and Columbus Avenue. Tr. 318-139. After Sergeant

Valerio claimed that after approaching and making eye contact with the appellant, the

appellant made what appeared to be a throwing motion with his arm. Tr. 406. Conversely,

Officer Crook saw Sergeant Valerio come approximately within five to ten feet of

appellant but did not mention appellant making any throwing motion. Tr. 321. Sergeant

Valerio did not find any drugs or money on the appellant nor did Sergeant Valerio find

any drugs or money in the brightly lit area where appellant was arrested. Tr. 409.

Appellant was brought to police precinct and later questioned in an interview

room. Tr. 332. Appellant was alone and without assistance of counsel when he was

interrogated by Officer Crook. Tr. 333. Officer Crook testified that he read appellant his

Miranda rights before questioning him. Tr. 333. Appellant stated that he was a user of

narcotics, was in a program, was on methadone and that appellant was “out there doing

that for crack.” Tr. 336. Officer Crook claimed that appellant stated that he had narcotics

on his person and threw those narcotics when Sergeant Valerio approached him. Tr. 338.

There is no audio or visual recording of appellant making these statements nor were any

officers besides officer Crook present when appellant allegedly made these statements.

SUPREME COURT’S INITIAL DISCUSSION OF THE UNCHARGED CRIME ISSUE

During cross examination Officer Crook claimed that he never asked Mr. Nurota

who sold him the drugs and he did not remember having any conversations with Mr.

Nurota. Tr. 366-367. In response to this line of questioning the prosecutor objected and

asked the judge during a sidebar with defense counsel present that because defense

counsel argued that appellant was the buyer, Defense counsel opened the door to the

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introduction of testimony about an exchange that appellant had with an un-apprehended

person that Officer Crook saw before appellant met with Mr. Nurota. Tr. 368. Defense

counsel protested that he had not opened the door to such questioning Tr. 368. The court

stated that it would allow the prosecutor to introduce testimony about the un-apprehended

person. Tr. 368.

The Prosecutor proceeded, over defense counsel objections, to ask officer Crook

if there was something that drew his attention to appellant before he saw appellant meet

with Mr. Nurota. Tr. 368-369. Officer Crook claimed he saw appellant give a man in a

black jacket a small object in exchange for an unknown amount of money at 875

Columbus Avenue approximately five minutes before appellant met with Mr. Nurota at

the same location. Tr. 369-370. On re-cross examination, Officer Crook claimed that the

man in the black jacket was un-apprehended. Tr. 380.

The court instructed the jury that it can consider the exchange between appellant

and the man in the black jacket only to evaluate what brought appellant to Officer

Crook’s attention and Officer Crook’s opportunity to observe and remember appellant’s

physical characteristics but not as proof that appellant possessed crack cocaine nor had

the propensity or disposition to commit the charged offense of sale of a controlled

substance in the third degree. Tr. 382. The court then broke for lunch. Tr. 382

Shortly after the court resumed for the afternoon session, Defense counsel moved

for mistrial arguing that questioning Officer Crook in a way that may lead to the jury

concluding that appellant is the buyer did not open the door to an act that goes to

propensity. Tr. 384. The prosecutor argued that defense allegation that the officers were

unable to see the exchange during the charged crime makes the similar exchange in the

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uncharged crime relevant. Tr. 385 The court ruled that defense counsel opened the door

as to whether appellant was the buyer by raising questions about officer Crook’s

opportunity to observe appellant’s conduct given the distance in the street and the height

of the building. Tr. 386. The court ruled that appellant’s prior conduct completes the

narrative and that the Molineux exceptions are not complete because there is room for

expanded Molineux issues. Tr. 386. The court also ruled that defense counsel “has an

issue for appeal on whether defense counsel necessarily opened the door to testimony

about the uncharged crime.” Tr. 387.

Police chemist Mr. Sivadasan confirmed that the substance seized from Mr.

Nurota was cocaine and that it weighed 4.1 grams. Tr. 392-393.

PEOPLE’S INTRODUCTION OF PHOTOGRAPHS TO PROVE MAGNIFICATION OF VISION FROM THE ROOF TOP

Laura Badger, Supervisor of the photography unit of the Manhattan District

Attorney’s Office testified about photos taken from the police of the spot where appellant

and Mr. Nurota met from the roof top observation post where officer Crook had been. Tr.

286. Ms. Badger testified that she worked for the Manhattan District Attorney for 15

years, took six long intensive courses in forensic photography and has testified about

more than 1000 observation photos. Tr. 287-288.

The trial court admitted Ms. Badger as an expert witness regarding the

photographs taken from the observation post. Tr. 289. Ms. Badger testified that the

photos were taken with a camera that produces six times magnification and the binoculars

that Officer Crook used produce seven times magnification. Tr. 293. Ms. Badger testified

that the photos she took from the observation post shows the sources of light at the scene

and would show the details shown in the photos even at night but they do not show how

5

the lights are when illuminated. Tr. 299. Ms. Badger admitted that the lighting conditions,

angle that the observer is holding the binoculars, the position of the observer on the roof-

top and the hand and body positions of the person on the ground are important factors

that affect the roof-top observer’s ability to see. Tr. 297

MOTION TO DISMISS AT THE END OF THE PROSECUTION’S CASE

At the end of the prosecution’s case, Defense counsel moved to dismiss citing that “a

reasonable view of the evidence would not provide the jury [with proof beyond a

reasonable doubt] to convict my client” Tr. 444.

SUMMATIONS

On summation, Defense counsel argued that officer Crook’s observations are not

reliable. Tr. 449. Defense counsel first raised an issue with the credibility of officer

Crook’s testimony given the distance between appellant and office Crook on the roof. Tr.

449-450. Defense counsel recalled Officer Crook’s own estimates that there could be 210

to 260 feet from the base of the building where officer Crook to where appellant and Mr.

Nurota were standing during the exchange. Tr. 450 After factoring in the magnifying

power of the binoculars with the distances, defense counsel concluded that officer Crook

could have been seeing appellant from a 35 to a 45 foot distance. Tr. 450. Defense

counsel also suggested that Mr. Nurota had his back to appellant and that there are many

body positions that would prevent officer Crook from seeing the exchange between

appellant and Mr. Nurota. Tr. 451.

Defense counsel pointed out that officer Crook did not testify about the lighting

conditions on Columbus Avenue at the time of the exchange and that Sergeant Valerio

only testified that the spot where appellant was arrested was brightly lit but not about the

6

lightning conditions where the exchange was made. Tr. 453. Attacking the value of the

photos, Defense counsel stressed that they were taken during the day, not at night when

the exchange was made. Tr. 454.

Defense counsel also attacked the credibility of appellant’s statements to officer

Crook in the police interrogation room on the grounds that those statements were not

recorded or filmed to assure their credibility and there is no testimony from other officer

to corroborate officer Crook’s claim about appellant’s statements. Tr. 460-461. While

conceding that appellant was at the scene of the crime at that time, Defense Counsel

argues that he was only a user trying to get drugs. Tr. 451. Defense counsel submitted to

the jury that even if appellant’s statements that he threw drugs into the buses are true,

users of narcotics might do the same thing and no drugs or money was found on appellant

or in the area where sergeant Valerio claimed appellant had made the throwing motion.

Tr. 459-460.

DISCUSSION OF PREJUDICIAL STATEMENT IN PEOPLE’S SUMMATION

The prosecutor began her summation by asserting that the only question the jury

has to consider is whether or not appellant sold cocaine to Mr. Nurota to which Defense

counsel’s objection was overruled. Tr. 465. Prosecutor then asserted that appellant sold

drugs even though he was a user because appellant does not have a job and needs to sell

drugs to support his own drug habit. Tr. 465-466. Defense objected to prosecutor’s

statement about appellant’s employment status, argued that no evidence of working

should be introduced and moved for a mistrial Tr. 465-466. Court sustains defense

counsel’s objection and did not rule on the motion for mistrial. Tr. 465-466.

7

The Prosecutor asserted that lights are shown in the photographs taken from the

roof-top so there was adequate artificial lighting at night when those lights are on. Tr.

467-468. Defense objected that there is no inference and the court overruled holding that

the jury’s recollection will control. Tr. 468. Prosecutor then stated that defense counsel

did not question Officer Crook about the lighting conditions at 875 Columbus Avenue

either. Tr. 467. Defense counsel objected but the court overruled stating that the jury’s

recollection would control. Tr. 468.

JURY DELIBERATIONS AND VERDICT

After the prosecutor finished her summation Defense counsel pointed out that the

court never ruled on defense counsel’s earlier motion for mistrial and that he didn’t hear

denied. Tr. 472. Defense counsel then submitted that the burden shift on the photographs

should be considered in terms of his motion for a mistrial. Tr. 472. The court rejected

defense counsel’s assertions that the prosecutor’s reference to defense counsel not asking

officer Crook about the lighting conditions on the night of the exchange was burden

shifting. Tr. 473. The court acknowledged that it sustained the prosecutor’s comment that

appellant sold drugs to buy drugs because appellant doesn’t have a job but then denied

defense counsel’s motion for mistrial. Tr. 473. The jury found the appellant guilty of the

criminal sale of a controlled substance in the third degree. Tr. 515.

8

ARGUMENTPOINT I

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE IT WOULD NOT HAVE BEEN UNREASONABLE TO FIND THAT APPELLANT WAS THE BUYER AND MR. NUROTA WAS THE SELLER GIVEN THAT OFFICER CROOK COULD NOT CLEARLY VIEW THE EXCHANGE, SERGEANT VALERIO FOUND DRUGS AND MONEY ON MR. NUROTA BUT DID NOT FIND DRUGS, MONEY, DRUG PARAPHRENALIA OR WEAPONS ON OR NEAR APPELLANT AND APPELLANT’S UNCORROBORATED STATEMENTS TO OFFICER CROOK, DID NOT CONTAIN TERMS ABOUT SELLING

An appellate court must weigh the relative probative force of conflicting

testimony and the relative strength of conflicting inferences that may be drawn from the

testimony, if a different finding would not have been unreasonable based on all credible

evidence. People v. Bleakley, 69 N.Y.2d 490, 495 (1987). The verdict in this case was

against the weight of the evidence because the jury could have reasonably found that

appellant was the buyer and Mr. Nurota the seller.

A finding that Officer Crook was able to see appellant give drugs to Mr. Nurota in

exchange for money goes against the weight of the evidence, notwithstanding officer

Crook’s use of binoculars to view the exchange. The object observed was only half an

inch in size. Tr. 358. The exchange took only one to three seconds. Tr. 353. Officer

Crook’s view of the exchange was obstructed because he could only see Mr. Nurota from

the back and partially from the side. Tr. 354. Officer Crook’s view of the object was also

obstructed because appellant cupped it in his hands and he could not recall which hand

Mr. Nurota held the money. Tr. 358. Officer Crook viewed the exchange from 200 to 260

feet away. Tr. 450. The exchange took place at 10 p.m. and no evidence was introduced

to show adequate lighting. Tr. 291. Sergeant Valerio found drugs and money on Mr.

Nurota but did not find any drugs, money, drug paraphernalia or weapons on or near

9

appellant. Tr. 402-403, 409. Finally, appellant’s uncorroborated statements are not

dispositive of intent to sell because they do not contain any terms about selling drugs.

Although the jury’s findings of facts are to be accorded deference, a finding that

Officer Crook was able to see appellant exchange drugs for money under these

circumstances is against the weight of the credible evidence. Bleakley, 69 N.Y.at 495.

Additionally, drugs and the $216 dollars were found on Mr. Nurota but no drugs, money,

weapons or paraphernalia were found on appellant and appellant’s uncorroborated

statements indicate that appellant is a user of drugs, do not indicate that he sold or had the

intention to sell drugs. Thus, the conviction should be reversed.

A. Officer Crook was unable to clearly view the exchange because the exchange was quick, his vision was obstructed, he observed the exchange from a great distance away and the exchange was at night

Officer Crook claimed to have seen appellant give a single, unknown object a half

an inch in size to Mr. Nurota in exchange for an unknown sum of money. Tr. 358. This

court has held that the observation of the exchange of “small white shiny objects” and the

recovery of two yellow tinted bags of cocaine does not sufficiently link the exchange

partner with the recovered drugs so as to establish possession or sale of cocaine. In re

Robert C, 232 A.D.2d 268, 268-69. (1st Dept. 1996). Here, as in Robert C. the officer’s

observations were deficient. Officer Crook claimed that it was “impossible” to identify

what was exchanged for the money and that it was only half an inch in size. Tr. 358.

This Court has held that a jury verdict is not against the weight of the evidence

where the observing officer was unable to identify a small object placed in buyer’s hands

in exchange for money when the drugs were later recovered from the buyer. People v.

10

Bolden 6 A.D. 3d 315 (1st Dept. 2004). It is however, unclear how much the officer saw

in Bolden.

Here, a finding that Officer Crook clearly viewed appellant exchanging drugs for

money with Mr. Nurota is against the weight of the evidence because Officer Crook

testified that the exchange was quick and his vision was obstructed. He further claimed

that the exchange between appellant and Mr. Nurota was one to three seconds. Tr. 353.

Officer Crook also claimed that he could only observe Mr. Nurota only from the back and

partially from the side. Tr. 354. Additionally, Officer Crook admitted that appellant had

the object cupped in his hands. Tr. 358. Furthermore, Officer Crook claimed that at no

point did he see appellant reach into his pocket or a bag. Tr. 355. Finally, Officer Crook

testified that he did not recall the hand that Mr. Nurota had the money in. Tr. 356.

Officer Crook also observed the exchange from a great distance away. Officer

Crook testified that he viewed the exchange from an observation post on the roof of a

nine-story building. Tr. 347. The distance between the observation post and the spot

where the exchange between appellant and Mr. Nurota took place was between 200 and

260 feet. Tr. 450. The Third Department has held that the testimony concerning the shape

and size of the bag as observed by a police officer standing 350 feet away was far too

speculative upon which to rest a finding that the bag must have contained heroin. People

v. Gomez, 207 A.D.2d 310, 311-12 (1st Dept. 1994). While the distance between the

observing officer and the exchange site in Gomez may have been 100 to 160 feet greater

than the distance between Officer Crook and the appellant, the object appellant was

holding was only half an inch in size, much smaller than the shopping bag in Gomez

11

which had been large enough to carry 250 glassine envelopes a black plastic zip lock bag

and blue box containing 19 rounds of ammunition. Gomez. 207 A.D.2d at 311.

The prosecutor tried to minimize the inference that Officer Crook could not have

clearly viewed the exchange by introducing photographs from the rooftop observation

post of the exchange location that were magnified six times in order to demonstrate the

seven time magnification power of the binoculars officer Crook had been using. Tr. 291-

293. However, even with Officer Crook using binoculars to magnify his vision seven

times, he would have still been viewing the exchange from 35 to 45 feet away. Tr. 450.

Furthermore, the photographs that the prosecutor introduced showed the crime

scene at mid-day not at 10p.m. when the exchange took place. Tr. 291. Though the

Appellate Division Third Department has held that a jury verdict is not against the weight

of the evidence when the observing officer used binoculars to observe the transaction at

night People v. Dowling, 75 A.D.3d 838, 839 (3rd Dept. 2010). That case is very different

because exchange took place in an SUV with the interior light on and the police had an

unobstructed view. Id. at 839. Here in contrast, the prosecutor offered no evidence

regarding lighting. Tr. 296, 299.

B. Sergeant Valerio found drugs and money on Mr. Nurota but did not find any drugs, money, drug paraphernalia or weapons on appellant

Sergeant Valerio found two bags of cocaine in Mr. Nurota’s pocket when he

arrested him on Manhattan Avenue shortly after the exchange. Tr. 402-403. Officer

Crook claimed to have seen appellant only exchange a single object for an unknown sum

of money. Tr. 358 Officer Crook also watched Mr. Nurota walk away from the exchange

up Columbus Avenue before making a turn onto Manhattan Avenue without meeting

with anyone else or picking anything up off the ground. Tr. 317. Mr. Nurota also had

12

$216 in cash on him in addition to the two bags of crack cocaine at the time of his arrest.

Tr. 361. Conversely, Sergeant Valerio found no drugs, drug money, drug paraphernalia or

weapons on appellant or in the area where appellant was arrested. Tr. 409 Sergeant

Valerio also testified that the area around appellant was strewn with debris but also

testified that the area was brightly lit. Tr. 409.

The absence of physical evidence in a case involving an observation may indicate

that the verdict is against the weight of the evidence. A jury verdict solely based on an

officer’s observations is against the weight of the evidence. In re Robert C., 232 A.D.2d

at 268-69. In that case, defendant was not found in possession of any drugs nor were any

drugs found in the dumpster where defendant allegedly took the crack cocaine from. In re

Robert C., 232 A.D.2d at 268-69. In Dowling, the court found that the officers' inability

to recover any money or drugs on defendant's person was sufficiently explained by

testimony that defendant had the opportunity, not observable to police, to toss items out

the SUV window prior to being stopped, and that the windy weather conditions would

have blown away paper or light baggies of cocaine. People v. Dowling, 75 A.D.3d at 840.

Here as in Robert C., Sergeant Valerio testified that he did not find any drugs or

money on appellant or in the brightly lit area around appellant. Tr. 409. Additionally,

Officer Crook watched Sergeant Valerio come within 5 to 10 feet of appellant. Tr. 320.

Unlike the defendant in Dowling, appellant was on foot and there was no testimony that

the weather conditions were windy. Therefore, Sergeant Valerio’s failure to recover

drugs after seeing appellant make a throwing motion was not sufficiently explained.

Officer Crook did observe appellant enter the building at 875 Columbus Avenue

three to five minutes after the exchange with Mr. Nurota and then observed appellant

13

leave the same building fifteen minutes later. Tr. 317-318. However, it would be pure

speculation for this court to find that appellant must have disposed of drugs during those

fifteen minutes. Additionally, the police could have inspected the common area of the

building or obtained a search warrant for appellant’s apartment.

C. The statements appellant made to Officer Crook only indicate that appellant was a user of narcotics and does not indicate that appellant sold or intended to sell drugs to Mr. Nurota and because it appellant did not use any terms about selling and the statements are uncorroborated

The statements that appellant allegedly made to Officer Crook did not indicate

that appellant sold or intended to sell drugs to Mr. Nurota but only indicated that

appellant was a user of drugs. Officer Crook claimed appellant said “he was a user of

narcotics, and that he was in a program at that time and that he was on methadone”

behavior that is consistent with a user of drugs. Tr. 336. Appellant also admitted that “he

did have something and he threw it…when he was approaching 104th and Columbus.” Tr.

337. That appellant discarded something, possibly drugs does not necessarily indicate

that appellant sold drugs to Mr. Nurota as Sergeant Valerio testified that drug possessors

will also discard drugs. Tr. 435.

Officer Crook testified that appellant said “he was out there at that time doing that

for crack,” a statement Officer Crook said he interpreted to mean that appellant was

selling drugs to buy drugs. Tr. 336-337. However, Officer Crook testified that appellant

never used terms about selling. Tr. 368. Furthermore, appellant’s statement do not

provide any details about the time, date and place of the exchange to support Officer

Crook’s interpretation of appellant’s statement as an admission that appellant sold drugs

to Mr. Nurota.

14

Appellant’s statements are also uncorroborated. The jury could not view

appellant’s demeanor when he made these statements because Officer Crook did not film

or tape the interrogation. Additionally, no other officers were able to corroborate Officer

Crook’s testimony about the interrogation. Additionally, there were no contemporaneous

notes of appellant’s statements. Instead, Officer Crook testified based on memo book

entries that he wrote down several hours after the statements were supposedly uttered. Tr.

362-363. Thus, appellant’s statements could only establish that he uses and possessed

drugs on the night of December 15, 2012

The jury’s verdict in this case went against the weight of the evidence because it

would not have been unreasonable for the jury to find that appellant was the buyer and

Mr. Nurota was the seller given the conflicting inferences that could be drawn from

Sergeant Valerio recovering two bags of cocaine and $216 from Mr. Nurota and

recovering no drugs, money, paraphernalia or weapons from appellant nor from the

brightly lit area around appellant, Officer Crook’s inability to identify the object cupped

in appellant’s hands and the absence of testimony about the lighting conditions at night.

POINT II

APPELLANT WAS DEPRIVED OF THE RIGHT TO A FAIR TRIAL BECAUSE THE COURT ADMITTED TESTIMONY OF AN UNCHARGED CRIME THAT ALLOWED THE JURY TO FIND THAT APPELLANT HAD THE PROPENSITY TO SELL DRUGS, THE PROSECUTOR INDUCED THE JURY TO FIND THAT APPELLANT SOLD DRUGS TO MR. NUROTA BASED ON FACTS NOT IN EVIDENCE AND THE PROSECUTOR SHIFTED THE BURDEN OF PROOF IN THE PEOPLE’S SUMMATION

Appellant was also deprived of his right to a fair trial when the court allowed

Officer Crook to testify that he observed him give a small object to an un-apprehended

person in exchange for money a few minutes before appellant met Mr. Nurota. Tr. 370. In

15

any drug sale, it is entirely logical for a jury to conclude that, if the defendant is shown to

be a dealer who has sold drugs in the past, he or she is likely to have sold drugs, as

charged, on a particular occasion. People v. Wilkinson, 71 A.D.3d 249, 253. (2nd Dept.

2010). If the only purpose of the evidence is to show bad character or propensity towards

crime however, the uncharged crime is not admissible. People v. Alvino, 71 N.Y.2d 233,

241. (1987). Whether evidence of prior crimes may be admitted under the Molineux rule

is a question of law not discretion although admissibility turns on the discretionary

balancing of the probative value and need of the evidence against the potential for delay,

surprise and prejudice if the evidence is probative of a legal and material issue before the

court. Id. at 242. The propensity inference created by the admission of the uncharged

crime was particularly troubling in this case because Officer Crook observed appellant

from almost the exact same distance, the prior exchange was very similar to the exchange

between appellant and Mr. Nurota and the prior exchange only happened a five minutes

before appellant met with Mr. Nurota. Tr. 370-371.

Additionally, appellant was deprived of his right to fair trial when the prosecutor

made a prejudicial remark during summation by asserting that appellant is unemployed

and drug users who are unemployed sell drugs to buy drugs. Tr. 465-466. The

prosecutor’s remark induced the jury to find that appellant sold drugs to Mr. Nurota

because based on appellant’s propensity to sell drugs to support his habit. This remark

also enhanced the prejudice of the earlier uncharged crime because it invited the jury to

convict appellant based on impermissible considerations because there was no evidence

of appellant’s employment status admitted at trial so the prosecutor’s remark was also

misleading as well as prejudicial.

16

Furthermore, appellant was deprived of his right to a fair trial because the

prosecutor shifted the burden of proof to the defense. During People’s summation the

prosecutor remarked that defense counsel did not ask Officer Crook about the lighting

conditions at Columbus Avenue either. Tr. 467. Defense counsel objected but the court

overruled stating that the jury’s recollection will control. Tr. 468.

A. The uncharged crime was inadmissible as a question of law because it was not probative of the material issue that defense counsel raised on cross-examination

The evidence of the uncharged crime was not probative of any legal or material

issue before the court so its admissibility is not a matter of the trial court’s discretion but

a question of law. The court ruled that defense counsel opened the door to the uncharged

crime by raising the issue about Officer Crook’s opportunity to observe the appellant. Tr.

386. Alternatively the court also stated that the evidence was admissible to “complete the

narrative.” Tr. 385. Officer Crook’s opportunity to observe appellant was not a disputed

issue because Officer Crook already testified that he was observing appellant in front of

875 Columbus Avenue because the police had received complaints about drug activity at

that location. Tr. 309-310.

The Appellate Division Fourth Department held that the trial court did not abuse

its discretion in permitting cross-examination of a defendant concerning an uncharged

crime that occurred in the interval between two charged drug sales. People v. Mitchell,

229 A.D.2d 956, 957. (4th Dept. 1996). In Mitchell, however, defense counsel opened the

door by eliciting testimony concerning the uncharged crime during defense cross

examination of a prosecution witness. Id, at 957. The holding in Mitchell does not apply

to this case because defense counsel did not elicit testimony from Officer Crook about the

prior exchange between appellant and the un-apprehended person. Rather, Defense

17

counsel was only trying to establish how clearly Officer Crook could view the money and

the object being exchanged between appellant and Mr. Nurota so that the jury could draw

its inferences about who is the buyer and who is the seller. Tr. 384.

Additionally, Officer Crook’s testimony of the uncharged crime was also not

probative of the material issue before the court that defense counsel did raise on cross

examination, which was Officer Crook’s ability to clearly view appellant’s exchange with

Mr. Nurota. Officer Crook’s testimony about the uncharged crime does not address his

ability to view the exchange between appellant and Mr. Nurota because it does not rebut

the concerns about the lighting conditions at Columbus Avenue at 10 p.m. and the

obstruction of Officer Crook’s view of the exchange between appellant and Mr. Nurota.

Officer Crook’s testimony therefore does not have probative value on a material issue

before the court and was only admitted to show that appellant sold drugs to Mr. Nurota

because he has a propensity to sell drugs based on the prior exchange.

B. The uncharged crime was also inadmissible as a matter of discretion because the prejudicial impact outweighed its probative value

Even if Officer Crook’s testimony about the uncharged crime was probative about

a material or legal issue that defense counsel raised on cross examination, the evidence of

the uncharged crime was inadmissible because the trial court abused its discretion by

failing to weigh the probative value against the prejudicial impact for the record. Tr. 384.

Even when the evidence of the uncharged crime was probative on a legal or material

issue before the court, the court is still required to properly exercise its discretion by

balancing the probative value and need of the evidence of the uncharged crime against

the potential for delay, surprise and prejudice that the evidence created. Alvino,71 N.Y.2d

18

at 242. In this case the Defense counsel told the judge that he did not hear the judge

balance the probative value against the prejudice for the record and the judge did not

respond to this concern. Tr. 384.

Additionally, even if the trial judge had performed the balancing test internally

the trial judge could have exercised his discretion by allowing defense counsel to

stipulate that Officer Crook was observing appellant before appellant met with Mr.

Nurota without introducing the prejudicial impact of the prior exchange.

Furthermore, even if this court finds that the trial judge internally weighed the

probative value against the prejudicial impact of the uncharged crime, this court should

still find that the court abused its discretion because “rebuttal evidence needs to

overcome some affirmative fact that the appellant tried to prove.” Alvino, 71 N.Y.2d at

248. In Crandall, the court found that notwithstanding defendant’s claim that he had been

framed, the evidence was not properly received either as evidence of intent or as rebuttal

evidence Id. at 247. In that case, the prosecutor introduced evidence of seven other prior

drug transactions that did not overcome the affirmative facts that the defendant sought to

prove namely, that the undercover officer and his colleagues apprehended and threatened

defendant. People v. Crandall, 67 N.Y.2d 111, 118-19. (1986).

Officer Crook testified that the earlier exchange between appellant and the un-

apprehended person occurred within two or three feet from where appellant met Mr.

Nurota and that he observed this earlier exchange from the same roof-top observation

post. Tr. 369-370. This testimony therefore, did not rebut any affirmative fact that

appellant raised about the distance Officer Crook viewed the exchange from. Tr. 350-

351. Additionally, Officer Crook was unable to identify or describe the small unknown

19

object that appellant allegedly gave to the un-apprehended person. Tr. 370. This

testimony therefore, did not rebut Officer Crook’s inability to identify the small,

unknown object that appellant allegedly gave to Mr. Nurota. Tr. 358. Furthermore,

Officer Crook did not testify about the body positions of appellant and the un-

apprehended person during the earlier exchange. Tr. 370. This testimony therefore, did

not rebut any affirmative facts about Officer Crook being unable to fully see the entire

exchange because he could only see Mr. Nurota from the back and side. Tr. 354. Finally,

Officer Crook testified that the earlier exchange between appellant and the un-

apprehended individual took place five minutes before the exchange between appellant

and Mr. Nurota. Tr. 371. This testimony therefore, does not provide any additional proof

about the lighting conditions at Columbus Avenue at 10 p.m. For these reasons Officer

Crook’ s testimony about the uncharged crime was not rebuttal evidence under Crandall.

Officer Crook’ testimony about the uncharged crime was also highly prejudicial

because it raised the improper inference that appellant had the propensity to sell drugs.

Furthermore, the admission of the uncharged crime encouraged the prosecutor to seek to

introduce other evidence that only establishes propensity. During summation the

prosecutor further induced the jury to find that the appellant sold drugs to Mr. Nurota by

asserting that the appellant is unemployed and that drug users who are unemployed sell

drugs to buy drugs. Tr. 465-466.

Finally, even if the probative value exceeded the prejudicial value where a drug

sale case rests on evidence of a single observed sale by a seller who is quickly arrested,

evidence that the defendant had made additional drug sales on other occasions is rarely if

ever admissible merely “to complete the narrative” People v. Wilkinson, 71 A.D.3d at

20

255. The trial court abused its discretion in admitting the evidence of the uncharged

crime because the testimony about the prior crime did not go to a disputed issue of fact

and did not add any additional narrative value as the exchange between appellant and the

un-apprehended person was very similar in substance to the testimony about the

exchange between appellant and Mr. Nurota and could therefore have easily been

stipulated by Defense.

C. Prosecutor’s remark during summation that appellant was unemployed was also prejudicial and misleading

The prosecutor’s allegation that appellant sold drugs to buy drugs because he was

unemployed also deprived appellant of his right to a fair trial because it appealed to the

jurors’ prejudices towards unemployed people and it was prejudicial even if it had not

reinforced the propensity inference from the uncharged crime. Additionally, the

allegation that appellant was unemployed was misleading because no evidence of

appellant’s employment status was introduced at trial. Tr. 465-466. The Court of Appeals

has held that it is “fundamental that the jury must decide the issues on the evidence and

therefore fundamental that counsel in summing up, must stay within the four corners of

the evidence and avoid irrelevant comments which have no bearing on any legitimate

issue in the case.” People v. Ashwal, 39 N.Y.2d 105, 109, (1976). The prosecutor went

outside the four corners of the evidence by making statements about the appellant’s

employment status thus inviting the jury to also look at propensity inferences from the

uncharged crime. Therefore the prosecutor’s statements about appellant’s employment

status nullified the court’s instruction to the jury that they were not to draw propensity

inferences from the testimony about the uncharged crime. Tr. 382.

21

D. The Prosecutor shifted the burden of proof to appellant during People’s summation by asserting that defense counsel did not ask Officer Crook about the lighting conditions at Columbus Avenue

Appellant was also deprived of his right to a fair trial because the prosecutor

shifted the burden of proof. During summation the prosecutor remarked that defense

counsel did not ask Officer Crook about the lighting conditions at Columbus Avenue. Tr.

467. Overruling counsel’s objection the court stated that the jury’s recollection will

control. Tr. 468.

The Second Department has held that a prosecutor who referred to evidence as

uncontroverted was a veiled and improper reference to the defendant’s failure to testify

which improperly shifted the burden of proof. People v. Smith, 288 A.D.2d 496, 497.

(2001). The prosecutor made a similar veiled and improper reference to appellant’s

failure to testify when she asserted that appellant also did not question Officer Crook

about the lighting. Tr. 468. This veiled and improper reference could have invited the

jury to draw the inference that the defense had the burden to prove that the quality of

lighting was poor in order to find reasonable doubt that Officer Crook saw appellant sell

drugs to Mr. Nurota. Although the prosecutor did not repeatedly make improper

references to appellant’s failure to ask Officer Crook about the lighting conditions, the

admission of the uncharged crime and the improper remark about the appellant selling

drugs because he was unemployed had made it likely that this jury would be amenable to

shifting the burden of proof to the appellant if induced only once to do so.

E. The court’s admission of the uncharged crime, the improper statement about appellant’s unemployment status and the burden shift during summation are harmful errors

The court’s admission of the evidence of the uncharged crime and the

prosecutor’s improper summation arguments were not a harmless error because the proof

22

of appellant’s guilt without reference to the errors were not overwhelming and there was

significant probability that the jury would have acquitted the defendant had it not been for

the errors.

The Court of Appeals has held that “unless the proof of the defendant's guilt,

without reference to the error, is overwhelming, there is no occasion for consideration of

any doctrine of harmless error.” People v. Crimmins, 36 N.Y.2d 230, 241 (1975). The

court in Crimmins, found that the proof that defendant murdered her daughter was

overwhelming because there was admissible eyewitness testimony of Defendant at the

scene of the crime, Defendant confessed killing her daughter, and the prosecutor

conclusively discredited the Defendant’s case. Crimmins, 36 N.Y.2d at 242-43.

The Second Department has also held that, [T]he erroneous admission of

evidence of uncharged crimes is harmless “where ‘the proof of the defendant's guilt,

without reference to the error, is overwhelming’ and where there is no ‘significant

probability…that the jury would have acquitted the defendant had it not been for the

error’ ”Wilkinson, 71 A.D.3d at 256. The defendant in Wilkinson was charged with

criminal sale of a controlled substance in the third degree because an undercover officer

allegedly saw defendant hand a clear plastic bag containing a white substance to another

person who gave defendant money. Id. at 250-251.

The court in Wilkinson found that the evidence of guilt without the admission of

testimony about prior uncharged drug sales was not overwhelming because the alleged

buyer had been impeached in several respects the defendant, was not detained at the

scene of the alleged transaction and was not in possession of any drugs when arrested

some hours later. Wilkinson, 71 A.D.3d at 257. In that case defendant had been arrested

23

based on an officer’s observation of a single drug transaction. Wilkinson, 71 A.D.3d at

250-251. Similarly, the court erred here by admitting evidence of prior uncharged drug

sales in a case where charge only rested on one observed drug sale. While, Mr. Nurota

was not a witness in appellant’s case Officer Crook was impeached in several respects

such as his ability to view the exchange based on the distance and lighting, his inability to

identify or describe the object cupped in appellant’s hands and his inability to recall what

hand appellant held the money in. Appellant was also not found in possession of any

drugs when arrested sometime after the crime.

Additionally, the court in Wilkinson found that the prosecutor compounded the

evidence of the uncharged crimes by asking the undercover officer a long series of

questions about the defendant’s drug trafficking and making improper statements that

emphasized the evidence of the uncharged crime by telling the jury that the buyer

followed a routine established by their prior business relationship. Wilkinson, 71 A.D.3d

at 257. Similarly, the prosecutor compounded the evidence of the uncharged crimes when

she made the improper statement about the appellant’s employment status that invited the

jury to make findings based on facts that went outside the four corners of the evidence.

Furthermore, the Wilkinson court found that although the trial court warned the

jury that the evidence was not admitted to show propensity, it never described a

legitimate purpose for which the evidence could be used in the case. Id. at 257. Here the

trial court never described a legitimate purpose for which the uncharged crime could be

used because testimony about the prior crime did not go to a disputed issue of fact and

has no relevance to the prosecutor’s narrative.

24

Finally, the court in Wilkinson found that the trial court’s limiting instructions

were insufficient to allay the prejudice caused by the erroneous admission of evidence of

uncharged sales. Wilkinson, 71 A.D.3d at 257. The Wilkinson court found that the court

instructing the jury:

“that evidence of the defendant's prior drug sales…offered to demonstrate the buyer's

relationship with the defendant and to complete the narrative…invited the jury to use the

evidence as proof that the defendant was the buyer's regular drug supplier who likely

acted in that capacity on the charged occasion.” Wilkinson, 71 A.D.3d at 257.

Here the court instructed the jury that they are to consider testimony about the

uncharged crime only to evaluate what brought Officer Crook’s attention to appellant and

Officer Crook’s opportunity to observe the appellant and not whether appellant had the

propensity to sell drugs. Tr. 382. Officer Crook admitted that he was already observing

the area where appellant was standing in response to complaints about drug sales in the

area. Therefore, the only inference that a jury could draw from the testimony about the

uncharged crime was that Officer Crook was observing what he believed to be a prior

drug sale.

Admission of the evidence of the uncharged crime was therefore a harmful error

because the proof of appellant’s guilt without reference to the error was not

overwhelming, the prosecutor compounded the error, the uncharged crime could not have

been used for any legitimate purpose other than propensity and the court’s limiting

instruction did not cure the error.

The Prosecutor’s improper remark that the appellant sells drugs to buy drugs

because he is unemployed was also not a harmless error. The Court of Appeals has held

25

that whether a defendant received a fair trial in light of any errors necessarily depends

upon the nature of the proof adduced and the type of error committed. People v.

Calabria, 94 N.Y.2d 519, 523. (2000). While each instance of prosecutorial misconduct

standing alone would not necessarily justify reversal, the Court of Appeals recognizes

that the cumulative effect of such conduct substantially prejudices defendants’ rights.

Calabria, 94 N.Y.2d at 523. Specifically, the nature of the proof adduced is a propensity

inference that appellant sold drugs to Mr. Nurota because he is unemployed even though

no evidence of Mr. Nurota employment was introduced at trial. The type of errors created

by the prosecutor’s assertion was prejudice and misleading the jury.

It becomes more necessary to justify reversal however, when the cumulative

effect of the prosecutor’s assertion doing summation is analyzed. While each instance of

prosecutorial misconduct standing alone would not necessarily justify reversal, the Court

of Appeals also recognizes that the cumulative effect of such conduct substantially

prejudices defendants’ rights. Id. at 523.

The propensity inference that appellant sells drugs to buy drugs because he is

unemployed has a deeper prejudicial impact because this jury has already been tainted by

the propensity inference that appellant sells drug because he allegedly gave drugs to the

un-apprehended person created by the admission of the uncharged crime. “Evenhanded

justice and respect for the fundamentals of a fair trial mandate the presentation of legal

evidence unimpaired by intemperate conduct aimed at sidetracking the jury from its

ultimate responsibility--determining facts relevant to guilt or innocence.” Id, at 523. Both

the introduction of the uncharged crime and the prosecutor’s attempt to link propensity to

sell drugs with the appellant’s unproven unemployment status are blatant violations of the

26

fundamental fairness of a trial because they are attempts by counsel to “go outside the

four corners of the evidence.” People v. Fisher, 18 N.Y.3d 964, 966. (2012)

The introduction of the uncharged crime raises the inference that the appellant has

the propensity to sell drugs based on the prior exchange and the prosecutor’s improper

remark that appellant sells drugs to buy drugs because he is unemployed establishes that

appellant has the propensity to sell drugs based on his employment status. Additionally,

no evidence of appellant’ employment status was introduced at trial. The prosecutor’s

remark therefore, mislead the jury into considering evidence “outside the four corners of

the evidence” People v. Fisher, 18 N.Y.3d 964, 966 (2012).

The prosecutor’s attempt to shift the burden of proof by asserting that the defense

did not question Officer Crook about the lighting conditions at Columbus Avenue was

not a harmless error because it also goes to a critical issue in the case, Officer Crook’s

ability to see. Thus the error impacted the fundamental fairness of the trial. The Second

Department has held that the cumulative effect of improper prosecutorial remarks

including improperly shifting the burden of proof was held to deprive a defendant of the

right to a fair trial because the evidence against the defendant in that case consisted of a

one-witness identification. People v. Smith, 288 A.D.2d 496 497. (2001). Similarly, the

evidence that appellant sold drugs to Mr. Nurota consists primarily of Officer Crook’s

testimony that he saw appellant give a small object to Mr. Nurota in exchange for money

and Officer Crook’ testimony about the statement appellant allegedly made to him.

27

Additionally, the court’s ruling that the jury’s recollection will control does not

alleviate the harm of the prosecutor’s burden shifting because the jury had already been

tainted by the evidence of the uncharged crime and the earlier improper remark about

appellant being unemployed. The Second Department has held that the improper

overruling of defense counsel’s objections to blatantly improper remarks coupled with

the court berating of defense for continuously interrupting prosecutor and telling defense

counsel to sit down condoned if not encouraged the prosecutor’s misconduct in the eyes

of the jury. People v. Walters, 251 A.D.2d 433, 435 (2nd Dept. 1998). While the court in

this case never berated defense counsel or explicitly told defense counsel to sit down, the

court was very dismissive of defense counsel’s objection to the prosecutor shifting the

burden of proof by ruling that the jury’s recollection will control. Tr. 467 The court then

overruled defense counsel’s objection to both the prosecutor’s attempt to infer the

lighting conditions from the day-time photographs and the prosecutor’s statement to the

jury that the only thing they need to consider is whether or not they believe the officers

on the stand. Tr. 467-468. These additional improper remarks and the court’s dismissive

treatment magnified the impact of the burden shift and diminished the effect of the

remedy.

F. The admission of the uncharged crime, the prosecutor’s improper statement and the prosecutor’s shift of the burden of proof are preserved for review under the interests of justice

Defense counsel objected to the prosecutor asking Officer Crook questions about

the uncharged crime. Tr. 368. Prosecutor argued that Defense opened the door to the un-

apprehended buyer because he planned to argue that Mr. Nurota was the buyer. Tr. 368.

Defense contended that there are other arguments that could be made with that defense

although he conceded that one of his arguments was that Mr. Nurota was the buyer. Tr.

28

368. The prosecutor then proceeded to question Officer Crook uncharged crime, a prior

exchange of a small object for an unknown sum of money between appellant and an un-

apprehended individual. Tr. 370. After the prosecutor introduced Officer Crook’s

testimony, the court broke for lunch. Tr. 382.

When the court re-opened in the afternoon, defense counsel said that he had

wanted to ask for a mistrial argued that the court did not do a balancing test and that

questioning Officer Crook about what he could not see does not open the door to an act

that goes to propensity. Tr. 384. The court responded that uncharged crime has narrative

relevance and was relevant to Officer Crook’s opportunity to observe. Tr. 385-386. The

court then conceded that defense had an issue for appeal. Tr. 387.

Defense counsel promptly objected and moved for mistrial when the prosecutor

made the improper remark that appellant was unemployed and needed to sell drugs to buy

drugs. Tr. 465-466. The court sustained the objection. Tr. 466. After the prosecutor’s

summation defense counsel asked the judge why he did not rule on the motion for

mistrial that he made earlier. Tr. 472. The judge claimed that he thought he ruled on it.

Tr. 472.

Defense counsel also objected to the prosecutor’s statement that defense counsel

did not ask Officer Crook what the lighting conditions were like. Tr. 467. The court

overruled the objection and responded that the jury’ recollection will control. Tr. 467.

After informing the court that he did not rule on his motion for mistrial defense counsel

asked the judge to consider the prosecutor’s burden shifting on the photographs in terms

of asking for a mistrial. Tr. 472. The court responded that the prosecutor’s statement

29

about defense counsel not questioning Officer Crook about the lighting conditions is not

burden shifting. Tr. 473. The court then stated that defense counsel’s earlier objection to

the improper statement had been sustained and denied the motion for mistrial. Tr. 484.

Even if a defendant’s contentions are not properly preserved for appellate review

they can still be reviewed by the court on appeal in exercise of the interest of justice

jurisdiction. People v. Anderson 35 A.D. 3d. 871, 872 (2006). In Anderson, the

prosecutor made reference to crimes in which the defendant had participated in but had

not been charged and also made qualified statements about the defendant’s guilt. Id, at

872. Here, appellant had not been charged for engaging in the exchange with the un-

apprehended person and the prosecutor remarked that appellant is unemployed and that

unemployed drug users sell drugs to buy drugs. Tr. 465-466. This court can therefore,

review the objections to the uncharged crime evidence notwithstanding any lack of

preservation under the interests of justice jurisdiction created by C.P.L 470.15.

Additionally, the prosecutor’s improper statement about appellant’s

unemployment status is reviewable under this court’s interest of justice jurisdiction. The

Second Department has held that while no single remark was so outrageous as to warrant

a new trial, since the evidence in this one witness case was not overwhelming a new trial

is required notwithstanding the preservation of defendant’s objections. Smith, 288 A.D.2d

at 497. A new trial is required here because the cumulative effect of the prosecutor’s

improper statement, the prior uncharged crime and prosecutor’s attempt to shift the

burden of proof to the defense regarding the lighting conditions at Columbus Avenue all

served to deprive appellant of his right to a fair trial and the evidence of guilt in this case

was not overwhelming and turned on the testimony of one witness, Officer Crook.

30

The court can review defense counsel’s objections to the prosecutor’s assertion

that defense counsel did not question Officer Crook about the lighting under the interests

of justice jurisdiction created by C.P.L. 470.15. The prosecutor’s statement that defense

counsel did not ask Officer Crook about the lighting conditions is a “veiled and improper

reference,” to appellant’s failure to prove that the lighting conditions were poor enough

for Officer Crook to be unable to clearly see whether appellant was the buyer or the seller

of the drugs. Smith, 288 A.D. 2d at 497. Therefore, this court can review the objections to

the prosecutor’s statement notwithstanding any lack of preservation under the interests of

justice jurisdiction created by C.P.L 470.15 because it was an attempt to shift the burden

of proof.

Appellant was deprived of his right to a fair trial when the trial court allowed the

prosecutor to introduce evidence of an uncharged crime that went to propensity in the

case, the prosecutor made an improper remark during summation that induced the jury to

consider propensity inferences based on appellant’s unemployment status that was not

shown at trial, and the prosecutor shifted the burden of proof to the defendant to prove

the lighting conditions at Columbus Avenue.

31

CONCLUSION

For these and the other foregoing reasons stated in point one, this court should

reverse the jury’s verdict and dismiss the indictment against appellant for the criminal

sale of a controlled substance in the third degree.

Alternatively, this court should order a new trial because appellant was deprived

of a fair trial for the reasons stated in Point II.

32