People v. Blackette

• Decision Date: 28 September 1979
• Citation: 420 N.Y.S.2d 400,71 A.D.2d 1027
• Parties: The PEOPLE, etc., Respondent, v. Eugene BLACKETTE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 400

420 N.Y.S.2d 400

71 A.D.2d 1027

The PEOPLE, etc., Respondent, v. Eugene BLACKETTE, Appellant.

Supreme Court, Appellate Division, Second Department.

Sept. 28, 1979.

Henry P. Baer, New York City (Anthony J. Siano and Roger J. Schiera, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ira I. Schneider, Baldwin, of counsel), for respondent.

Before HOPKINS, J. P., and TITONE, MANGANO and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 2, 1978, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and new trial ordered. No issues have been raised with regard to the sufficiency of the facts.

Defendant was charged in a two-count indictment with "acting in concert" in two separate sales of narcotics to an undercover officer on May 18, 1976 and June 2, 1976. At trial, after the defense had rested without presenting any proof, the court, on motion, dismissed the first count of the indictment (involving the May 18 transaction) for legal insufficiency. Thereafter, the court charged the jury that it was not to deliberate as to the first count of the indictment and, in what we now hold to have been a proper decision, denied a prosecution request to instruct the jury that it might rely upon All of the evidence in the case in considering the second count of the indictment (i. e., the June 2 sale). However, when the jury subsequently returned from its deliberations to inquire of the court whether it might "use the May 18th evidence as part of the June 2nd case", the court reversed itself and answered: "You will use all of the evidence in this case in considering the second count of the indictment, which is the June 2nd case". In our opinion, this supplemental charge was erroneous.

Assuming for the sake of argument that the evidence deemed legally insufficient to establish defendant's complicity in the May 18 sale might have had some slight relevance to the prosecution of the second count of the indictment (and none has been demonstrated on this appeal), it is our belief that any such scant relevance was more than outweighed by the undue prejudice to the defendant resulting from the court's charge (see People v. Fiore, 34 N.Y.2d 81, 356 N.Y.S.2d 38, 312 N.E.2d 174; People v. Jones, 62 A.D.2d 356, 404 N.Y.S.2d 865). As the Court of Appeals...