People v. Alvarez

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: All concur except MURPHY, P.J., and ROSENBERGER, J., who dissent in a memorandum by ROSENBERGER; ROSENBERGER
• Citation: People v. Alvarez, 620 N.Y.S.2d 381, 211 A.D.2d 425 (N.Y. App. Div. 1995)
• Decision Date: 10 January 1995
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose ALVAREZ, Defendant-Appellant.

Page 381

620 N.Y.S.2d 381

211 A.D.2d 425

The PEOPLE of the State of New York, Respondent, v. Jose ALVAREZ, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Jan. 10, 1995.

Before MURPHY, P.J., and ROSENBERGER, WALLACH, KUPFERMAN and ASCH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered July 20, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4 1/2 to 9 years, affirmed.

The trial court's issuance of a proper Allen charge, after its questionable supplemental instruction to the jury to "accommodate" inconsistencies, alleviated any prejudice that may have been caused by that prior instruction. Defendant's claim that the court gave an improper adverse inference charge is not preserved for appellate review as a matter of law (People v. Nunez, 182 A.D.2d 527, 583 N.Y.S.2d 916, lv. denied 80 N.Y.2d 836, 587 N.Y.S.2d 920, 600 N.E.2d 647), and we decline to review it in the interest of justice since, to the extent the charge may have implied that defendant's decision not to testify was a trial strategy, the error if any, when viewed in the context of the entire charge was harmless. Contrary to defendant's claim, the charge did not unambiguously convey that the defendant should have testified (see, People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 552 N.E.2d 156).

Defendant's final claim that the arresting officer bolstered the undercover officer's identification testimony is also not preserved as a matter of law, and, in any event without merit. In the context of buy-and-bust operations, neither police testimony as to a confirmatory drive-by identification (People v. Rosado, 191 A.D.2d 262, 263, 595 N.Y.S.2d 20, lv. denied 81 N.Y.2d 1019, 600 N.Y.S.2d 207, 616 N.E.2d 864), nor an undercover's description of the seller given to an arresting officer (People v. Sarmiento, 168 A.D.2d 328, 329, 565 N.Y.S.2d 1, affd. 77 N.Y.2d 976, 571 N.Y.S.2d 906, 575 N.E.2d 392) constitutes bolstering.

All concur except MURPHY, P.J., and ROSENBERGER, J., who dissent in a memorandum by ROSENBERGER, J., as follows:

ROSENBERGER, Justice (dissenting).

I would reverse the judgment and remand the matter for a new trial.

The defendant put forth a mistaken identity defense, based upon inconsistencies in the descriptions provided by the officers, and emphasizing that the pre-recorded "buy" money was not recovered, although he was arrested almost immediately after the alleged sale.

On June 16, 1992, at approximately 11:10 a.m., the jury began deliberations. At about 9:20 p.m., they sent out a note stating that they could not agree and would like to be dismissed. In response, the court instructed the jury, in pertinent part, as follows:

The jury ... must deliberate, yes, but in the course of that deliberation they must accommodate some inconsistencies, perhaps, that appear on the surface by what one or another juror may be urging, as you know you must, conflicting testimony as well as conflicting ideas that are cast about in the jury room....

Defense counsel objected to this portion of the court's supplemental charge, and moved for a mistrial, or an immediate curative instruction. The court denied the motion, no curative instructions were given, and at 10:45 p.m. the court adjourned for the night and the jury was ordered sequestered. At about 11:30 a.m. the next day, the court admonished the jurors to attempt to resolve inconsistencies only if th...