People v. Alvino

• Court: New York Court of Appeals
• Writing for the Court: SIMONS; WACHTLER, C.J., and ALEXANDER and BELLACOSA, JJ., concur with SIMONS; HANCOCK; WACHTLER, C.J., and KAYE, ALEXANDER and BELLACOSA, JJ., concur with SIMONS; HANCOCK, J., dissents in part and votes to modify in a separate opinion in which TITONE
• Citation: 519 N.E.2d 808,71 N.Y.2d 233,525 N.Y.S.2d 7
• Decision Date: 17 December 1987
• Parties: , 519 N.E.2d 808 The PEOPLE of the State of New York, Respondent, v. Charles ALVINO, Appellant. The PEOPLE of the State of New York, Appellant, v. Amalio HERNANDEZ, Also Known as Amilio Hernandez, Respondent.

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525 N.Y.S.2d 7 71 N.Y.2d 233, 519 N.E.2d 808 The PEOPLE of the State of New York, Respondent,
v.
Charles ALVINO, Appellant.
The PEOPLE of the State of New York, Appellant,
v.
Amalio HERNANDEZ, Also Known as Amilio Hernandez, Respondent. Court of Appeals of New York. Dec. 17, 1987.

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Bertrand J. Kahn and Philip L. Weinstein, New York City, for appellant in the first above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Mark Cammack and Mark Dwyer, New York City, of counsel), for respondent in the first above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Deborah Hickey and Donald J. Siewert, New York City, of counsel), for appellant in the second above-entitled action.

Eugene Feldman, New York City, for respondent in the second above-entitled action.

OPINION OF THE COURT

SIMONS, Judge.

These two unrelated appeals concern the admissibility, under the rule in People v. Molineux, 168 N.Y. 264, 61 N.E. 286, of evidence of prior crimes to establish intent in the prosecution of charges in which the gist of the offense is guilty knowledge. In People v. Alvino, 122 A.D.2d 666, 505 N.Y.S.2d 868, defendant was charged with issuing a false certificate (Penal Law § 175.40) and bribe receiving, second degree (Penal

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Law former § 200.10). During their direct case, the People offered evidence of 15 similar crimes to establish that defendant knew an amended driver's license was false when he issued it and that it was issued because of an agreement between defendant and another to issue amended drivers' licenses for money. In People v. Hernandez, 126 A.D.2d 426, 510 N.Y.S.2d 129, defendant was charged with various drug counts, including criminal sale, possession and possession with intent to sell. Evidence of prior drug sales was offered on rebuttal, after defendant had admitted possession of the drugs but denied that he intended to sell them or that he had ever sold drugs in the past, to establish his intent to sell. The evidence was properly received in both cases and the convictions should, therefore, be sustained. I A

Defendant Alvino was a cashier employed by the New York State Department of Motor Vehicles in Manhattan. His duties included processing, approving and issuing various licenses, permits and, as in this case, amended drivers' licenses for which no fee is charged. The principal witness for the prosecution was Mario Falto, a man, who by his own admission, had spent the last 10 years of his life illegally obtaining various licenses and other documents by bribing officials of the Department of Motor Vehicles. On July 19, 1982, he was arrested on one such charge and agreed to work undercover for the District Attorney in hopes of obtaining a more lenient sentence.

Falto testified at defendant's trial that, while working with the District Attorney on September 10, 1982, he gave defendant $100 in cash in return for defendant's processing and issuing a false amended driver's license in the name of Victor Lopez. An investigator for the District Attorney's office, standing nearby at the time of the transaction, testified that he saw Falto hand defendant five bills in United States currency. The People also introduced two tape recordings of conversations between Falto and defendant on the day of the charged crimes. On one tape, which recorded the transaction when Falto received the amended license, Falto stated he was handing defendant money. The other recorded a conversation between defendant and Falto later in the day. Although the tape was barely audible, the People claim that the second conversation relates to the Lopez license transaction and that statements made by defendant and recorded on the tape constituted an admission by him that he received money from Falto. Over defendant's objections, Falto was also permitted to testify that he had engaged in 15 prior transactions with defendant in which defendant had issued similar false documents to Falto or his partner in return for money.

Before receiving this evidence, the court held an extensive inquiry in the absence of the jury, as we have suggested a court should (see, People v. Ventimiglia, 52 N.Y.2d 350, 361-362, 438 N.Y.S.2d 261, 420 N.E.2d 59). At the hearing, the prosecutor contended that the evidence was admissible either on the issue of intent or absence of mistake. Defense counsel opposed reception of the evidence asserting that intent or mistake was not in issue because defendant would not claim that he had taken the money by mistake or without any criminal intent but that he had not taken it at all. Indeed, that was defendant's testimony at trial. Counsel claimed, therefore, that the evidence was not relevant and that the prejudice resulting from its reception far exceed its probative value. The court admitted the testimony and the jury found defendant guilty as charged. A divided Appellate Division affirmed the judgment.

B

In People v. Hernandez, defendant was convicted after trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [intent to sell] ) and criminal possession of a controlled substance in the seventh degree (Penal Law

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§ 220.03). The charges arose from an incident observed by a four-man police team during their surveillance of a Manhattan schoolyard. From the roof of a nearby building, two officers observed defendant engage in two suspicious transactions which appeared to be drug sales. No arrests were made, however, until they observed a third transaction. After the third buyer left the scene, the two officers on the roof notified two officers on the ground who then followed the buyer and arrested him. They found a glassine envelope marked "Force 44" in his shoe and 37 hypodermic needles on his person. The officers on the roof then descended, followed defendant and arrested him. They found in his possession 21 envelopes containing cocaine, each stamped with the logo "Force 44".

After the People had presented this evidence at trial, defendant took the witness stand. He testified that he was an unemployed pauper and had been addicted to cocaine for the last 10 years. He claimed that to support his habit he had become a professional shoplifter who stole clothing from department stores and then sold it on the streets. He admitted several prior larceny arrests and convictions and one arrest on May 1, 1984, after which he had pleaded guilty to criminal possession of a controlled substance. Defendant testified that on the day of his arrest he had purchased drugs from a seller and paid $105 for 21 $5 glassines of cocaine. The money for the purchase had come from his sale of six pairs of jeans and five shirts, all stolen. He stated that the "nickel bags" in his sneakers were for his own consumption and he estimated that they would last him no more than an hour. He was an addict, he claimed, not a drug seller; he had not intended to sell the drugs to anyone. Indeed, he claimed he had never sold drugs to anyone.

In light of defendant's claim, the People were permitted on cross-examination to question him about three recent episodes on May 1, 12 and 15, 1984, when he allegedly had sold drugs. He denied the People's accusations and repeated his claim that he had never sold drugs. The People then recalled Officer Bisogna, one of the arresting officers who testified, on rebuttal, that on May 1, 1984 he saw defendant on the street holding glassine envelopes in his hand and surrounded by a crowd. When defendant sighted him, Officer Bisogna said, he threw the glassine envelopes to the ground. Defendant was arrested and, as defendant had admitted, pleaded guilty to criminal possession of a controlled substance. Officer Bisogna and Officer Orlando also testified on rebuttal that they watched from the rectory of a neighborhood church on May 12, 1984 at 6:00 P.M., disguised in clerical garb, as defendant appeared some 15 feet away holding a clear glassine bag containing about 50 glassine envelopes. Customers lined up in front of defendant exchanging money for glassine envelopes. The officers arrested one of the buyers, who possessed glassine envelopes, but defendant escaped before they could arrest him. Officer Orlando also testified he observed three other sales by defendant on May 15, 1984, which resulted in his arrest and the arrest of a buyer, both of whom were found in possession of glassine envelopes containing cocaine.

This rebuttal evidence of prior crimes was received over defendant's objection and after an extended colloquy at which the People first urged that it was admissible on the issue of credibility. Defendant contended, however, that the People were bound by defendant's answers on cross-examination and could not introduce collateral evidence to impeach him (see, People v. Crandall, 67 N.Y.2d 111, 118, 500 N.Y.S.2d 635, 491 N.E.2d 1092; People v. Pavao, 59 N.Y.2d 282, 288, 464 N.Y.S.2d 458, 451 N.E.2d 216; People v. Schwartzman, 24 N.Y.2d 241, 245, 299 N.Y.S.2d 817, 247 N.E.2d 642, cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96). The People then urged that defendant had sought to controvert his intent to sell--a material fact in the prosecution--by his bizarre testimony and that the evidence of uncharged crimes was admissible on rebuttal to disprove it. The court admitted the rebuttal evidence solely to impeach defendant's credibility

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and he was convicted of criminal sale, possession with intent to sell, and possession.

The Appellate Division, basing its holding on our decision in People v. Crandall, 67 N.Y.2d 111, 500 N.Y.S.2d 635, 491 N.E.2d 1092, supra, modified on the law by reversing the convictions for criminal sale and possession with intent to sell and ordering a new trial on those counts. It affirmed the count charging criminal possession in the seventh degree inasmuch as defendant had admitted possession. The Appellate Division stated...