30 N.Y.2d 199, People v. Calvano

Citation:30 N.Y.2d 199, 331 N.Y.S.2d 430
Party Name:People v. Calvano
Case Date:March 23, 1972
Court:New York Court of Appeals

Page 199

30 N.Y.2d 199

331 N.Y.S.2d 430

The PEOPLE of the State of New York, Respondent,


Ron CALVANO, Appellant.

New York Court of Appeals

March 23, 1972.

Page 200

[331 N.Y.S.2d 432] Courtland R. LaVallee and John J. Fromen, Buffalo, for appellant.

Michael F. Dillon, Dist. Atty. (Judith Blake Manzella, Buffalo, of counsel), for respondent.

Page 201

GIBSON, Judge.

The alleged commission by the defendant on November 15, 1968 of criminal acts unrelated to those for which he was on trial was proven by the People, who seek to justify the production of this ordinarily irrelevant evidence (1) as probative of disposition refuting the defense of entrapment, interposed to a charge of crime committed prior thereto, on November 11, 1968; and (2) as countering the defense of duress, interposed to a charge of crime committed thereafter, on November 19, 1968. Additionally, the People referred to defendant's alleged possession, on December 15, 1968, of marijuana and a hypodermic syringe, to test the opinion of a character witness testifying to defendant's good reputation as of the time of the alleged crimes of November 11, 1968 and November 19, 1968. These various time factors underlie appellant's claims of error.

Through the efforts of undercover police officers, aided by an informer, the defendant was indicted, and subsequently arrested and tried, upon charges of criminal possession of a dangerous drug, second degree, and criminally selling a dangerous drug, second degree, each committed on November 11, 1968, and with like possession and sale, second degree, each committed on November 19, 1968. Defendant was, by verdict of a jury, acquitted of the counts of possession and sale charged to have been committed November 11, 1968 and convicted of the charges of possession and sale alleged to have been committed November 19, 1968.

As to the November 11 transaction, involving a sale of heroin to the undercover officers, after they had been introduced to defendant by their informer, defendant denied any unlawful complicity, asserting, in effect, that he had been framed by

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the informer; and to the charges arising out of this transaction he interposed the defense of entrapment.

As to the November 19 transaction, another sale to the same undercover officers was involved. Defendant, having interposed the defense of duress, testified that, following threats and physical compulsion by the officers, he gave to his friend, subsequently identified as an informer, $28 which the officers had given him and accompanied the informer to an unfamiliar area where the latter entered a house and returned with an envelope which defendant later gave to the officers.

[331 N.Y.S.2d 433] On cross-examination bearing upon both the November 11 and November 19 transactions, defendant was asked whether, on November 15, 1968, he had possessed and had sold to these same officers a substance which he represented to be heroin, and this he categorically denied. Thereafter, the People recalled one of the detectives, who testified that on November 15 defendant sold to him and to the other detective envelopes containing a white powder, represented to be heroin; and the People then proved by a police chemist that the substance was free of heroin, and certain glassine envelopes and certain laboratory records were thereupon offered and received in evidence. There was and is no suggestion that any conviction followed and ordinarily, of course, the People would be bound by defendant's denials on cross-examination and would not be permitted to produce proof in contradiction (People v. Sorge, 301 N.Y. 198, 201, 93 N.E.2d 637, 639; Richardson, Evidence (9th ed.), § 510, p. 515). The People concede that the detective's testimony 'would be inadmissible for the Sole purpose of showing the defendant's criminal propensities, or to impeach the defendant's...

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