People v. Addison
| Decision Date | 07 November 1997 |
| Citation | 667 N.Y.S.2d 208,174 Misc.2d 873 |
| Parties | , 1997 N.Y. Slip Op. 97,652 The PEOPLE of the State of New York, Plaintiff, v. John ADDISON, Defendant. |
| Court | New York Supreme Court |
Donald D. du Boulay, New York City, for defendant.
Robert T. Johnson, District Attorney of Bronx County (Xavier Donaldson, of counsel), for plaintiff.
This is defendant's motion to set aside a verdict of guilty pursuant to CPL 330.30.
This Court presided over defendant's trial under a three count indictment: count one was criminal sale of a controlled substance in the third degree; count two was criminal possession of a controlled substance in the third degree and concerned the same subject matter as count one (Exhibit 2C); and count three was criminal possession of a controlled substance in the third degree and concerned drugs which were found on the defendant's person when he was arrested (Exhibit 4B).
The evidence at trial was that an undercover police officer purchased two bags of what appeared to be heroin (Exhibit 2C) from the defendant in exchange for twenty dollars of pre-recorded buy money, immediately left the scene, radioed a description of the seller to the arresting officers and confirmed that the right person had been arrested in a drive-by confirmatory identification about five minutes later. Joann Geoghegan, the arresting officer, testified that after arresting defendant based on the undercover officer's description, she searched the defendant and found one bag of what appeared to be heroin (Exhibit 4B) on his person. Expert evidence was also introduced to show that both exhibits 2C and 4B contained heroin. On the other hand, only five dollars of the pre-recorded buy money was recovered from the defendant when he was arrested.
The defense argued to the jury that the defendant had not sold any drugs but was an addict who had purchased Exhibit 4B minutes before he was arrested for his own use and received the $5.00 of pre-recorded buy money as change during that transaction. This explained, the defendant argued, why he had only $5.00 and not $20 of pre-recorded buy money. The identification by the undercover officer of the defendant as the seller was, according to the defense, mistaken.
After summations, the jury was instructed by the Court as to the elements of all the crimes charged and that counts one and two concerned Exhibit 2C and that count three concerned Exhibit 4B. The jury returned a verdict of not guilty as to counts one and two and guilty as to count three. At defense counsel's request, the jury was polled and the verdict as confirmed was recorded.
No objection was then made that this verdict was repugnant, the jury was discharged, and the jurors and counsel left the courtroom. Not more than five minutes later, defense counsel re-entered the courtroom and stated that when he asked the jurors how they could acquit on counts one and two and convict on count three, they responded that they had not understood count three to require an intent to sell and that they wished to relate this to the Court.
Because of the uniqueness of the situation and the presence of all the necessary parties, including the entire jury panel, I instructed all the jurors to return to the jury room and not to discuss the case. I then made inquiry of both counsel, requesting their opinions as to what procedure should be followed. After discussing the issue, I determined that a complete record should be made and I interviewed all twelve jurors one by one. They all stated essentially the same thing: that during deliberations they thought count three was possession and not possession with intent to sell and convicted on that basis. They blamed their misunderstanding of the law on the fact that the elements of the crimes were not set forth on the verdict sheet.
Defendant first moves to set aside the verdict on the ground that the acquittal on counts one and two is repugnant to the conviction on count three. As an initial matter, defendant has waived this argument. A protest that a jury's verdicts on different counts are inherently inconsistent and therefore repugnant must be registered prior to the discharge of the jury. This is so that, if there is such a defect, the verdicts may be resubmitted to the jury for its reconsideration. (People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271; cf., People v. Salemmo, 38 N.Y.2d 357, 379 N.Y.S.2d 809, 342 N.E.2d 579.)
Nor does CPL 310.50(2) require a different result. Although that section requires the court to resubmit a verdict to a jury for reconsideration, it is only when the verdict's form "is not in accordance with the court's instructions or which is otherwise legally defective...." Here, there was nothing wrong with the form of the verdict nor was it legally defective. (People v. Robinson, 45 N.Y.2d 448, 410 N.Y.S.2d 59, 382 N.E.2d 759.)
The test for repugnancy is where "acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered." (People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617.) Moreover, in performing this test, the reviewing court looks only to the charge and not to the evidence so as to avoid speculation and other intrusions into the jury's deliberations. (People v. Tucker, supra, at 7, 447 N.Y.S.2d 132, 431 N.E.2d 617.)
Here, for example, the jury was free to reject the expert evidence concerning the chemical composition of Exhibit 2C and was therefore free to find, however illogically, (see, People v. Tucker, supra) that Exhibit 2C did not contain a narcotic drug. The acquittal on counts one and two therefore did not necessarily establish that defendant was not the seller, only that he was the seller of something that turned out later upon chemical analysis not to contain a narcotic drug. Moreover, the jury was also free to accept the evidence that Exhibit 4B was heroin and that, based on defendant's prior sale activity, he possessed it with the intent to sell. (See also, People v. Green, 71 N.Y.2d 1006, 530 N.Y.S.2d 97, 525 N.E.2d 742; People v. Paz, 159 A.D.2d 987, 552 N.Y.S.2d 753, lv. denied 76 N.Y.2d 793, 559 N.Y.S.2d 999, 559 N.E.2d 693; People v. James, 112 A.D.2d 380, 491 N.Y.S.2d 836.)
Defendant next argues that the evidence was insufficient as a matter of law to convict him on count three. This, however, is just the repugnance argument in a different form. Clearly there was evidence that the defendant sold something which appeared to be heroin (Exhibit 2C) and he was found to be in possession of heroin when he was arrested (Exhibit 4B). This is sufficient to establish possession with the intent to sell. The evidence would have been insufficient if but only if the acquittal on counts one and two necessarily determined that defendant was not the person who sold Exhibit 2C to the undercover officer....
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