People v. Calvano
Decision Date | 23 March 1972 |
Citation | 30 N.Y.2d 199,282 N.E.2d 322,331 N.Y.S.2d 430 |
Parties | , 282 N.E.2d 322 The PEOPLE of the State of New York, Respondent, v. Ron CALVANO, Appellant. |
Court | New York Court of Appeals Court of Appeals |
Courtland R. LaVallee and John J. Fromen, Buffalo, for appellant.
Michael F. Dillon, Dist. Atty. (Judith Blake Manzella, Buffalo, of counsel), for respondent.
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 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.
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 credibility'; but contend that it 'was properly admitted to establish the defendant's intent relative to the sales of heroin charged, after the element of intent was placed squarely in issue by the defenses of entrapment and duress.'
The defendant of entrapment is new to New York criminal procedure. Section 40.05 of the Penal Law, Consol.Laws, c. 40, so far as here pertinent, provides for it, as follows:
Duress is also constituted a defense, and section 40.00 of the Penal Law, defining it, provides, so far as here pertinent:
It is provided by section 25.00 (subd. 2) of the Penal Law that when an affirmative defense is raised, 'the defendant has the burden of establishing such defense by a preponderance of the evidence' and we have recently found unwarranted the '(c)oncern (that) has been expressed whether constitutional due process limitations are invaded by placing the burden of persuasion on a defendant with respect to the defense of entrapment' (People v. Laietta, 30 N.Y.2d 68, 74, 330 N.Y.S.2d 351, 356, 281 N.E.2d 157, 161).
Thus, the defendant was under the burden of proving entrapment by showing that he was 'a person not * * * disposed to commit' the drug crimes charged, and of proving duress by satisfying the jury that he was coerced to commit them by the use or threat of force overcoming his will; and the People assert that they were, therefore, entitled to refute his proof by evidence of his intent or disposition to commit criminal acts of that nature.
That proposition would seem logically to follow and it does, indeed, find support in high authority. Thus, Chief Justice Hughes, writing for the court, after finding the predisposition and criminal design of the defendant relevant to the defense of entrapment, said: (Sorrells v. United States, 287 U.S. 435, 451--452, 53 S.Ct. 210, 216, 77 L.Ed. 413.)
The Sorrells rule was reaffirmed in Sherman v. United States (356 U.S. 369, 376, 78 S.Ct. 819, 2 L.Ed.2d 848) in which, however, the Government's proof of defendant's previous narcotics convictions--one a nine-year-old sales conviction and the other a five-year-old possession conviction--was held insufficient to prove defendant's 'readiness to sell narcotics' (p. 375, 78 S.Ct. p. 822) at the time of the crime charged. The rule is said to have been 'adopted overwhelmingly by the states' (Note, 32 Brooklyn L.Rev. 353, 356; and see 18 A.L.R. 146; 66 A.L.R. 478; 33 A.L.R.2d 908). Upon the authority of Sorrells and Sherman, it has been said: 'As a practical matter, therefore, the defense of entrapment would not be available to the person who regularly engages in illegal enterprise' (Practice Commentary by Richard G. Denzer and Peter McQuillan, McKinney's Cons.Laws of N.Y., Book 39, ...
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