People v. Brown

Citation554 N.Y.S.2d 492,160 A.D.2d 440
PartiesThe PEOPLE of the State of New York, Respondent, v. Dwayne BROWN, Defendant-Appellant.
Decision Date17 April 1990
CourtNew York Supreme Court Appellate Division

A.E. Kaplan, for respondent.

S.A. Schmidt, for defendant-appellant.



Judgment of the Supreme Court, New York County (Allen Alpert, J.), rendered April 27, 1989, convicting defendant, after jury trial, of criminal possession of a weapon in the third degree (Penal Law § 265.02[4] and sentencing him to an indeterminate term of imprisonment of from 3 1/2 to 7 years, affirmed.

Defendant contends that the court improperly admitted into evidence testimony relating to reports made by civilian witnesses to the arresting officers regarding a man, dressed similarly to defendant, who was seen brandishing a sawed-off shotgun in DeWitt Clinton Park shortly before the arrest. Defendant's position, with which the dissent agrees, is that admission of this evidence of an uncharged crime was unnecessary and beyond the permissible grounds of background material and therefore constitutes an abuse of discretion by the Trial Justice. In our opinion, the strategy employed by defense counsel required that the disputed evidence be heard by the jury in order for the actions of the arresting officers to be viewed in the proper perspective, and its admission was not an abuse of discretion (People v. LeGrand, 76 A.D.2d 706, 709, 431 N.Y.S.2d 850).

Defendant was arrested by Housing Police Officers Joseph Dicanio and George Switzer in the presence of three other men. Two of these men, Cesar Quinones and Jose Valenzuela, testified on defendant's behalf at trial. They stated that, in the course of playing basketball in DeWitt Clinton Park, the police shone a light on the three men as they sat on a park bench and asked what they were doing. Lewis stated that he felt the policemen were harassing them and identified one of the officers as George Switzer. They then left the park and went to sit in front of 535 West 51st Street. They saw defendant across the street with his girlfriend and called to him to join them. They testified that, about twenty minutes later, they observed the same police officers drive the wrong way along West 51st Street. The officers exited the police car with their guns drawn and, with no explanation, ordered the four men to stand with their hands up against the wall while they looked under a car parked at the curb. Quinones testified that one of the officers looked in the bushes on either side of the building before locating a white bag with a sawed-off shotgun inside. Lewis, however, testified that the officer went right to the spot where the bag was located. Both denied seeing defendant carrying the bag. The witnesses further stated that the four men were not told why they were being arrested until they had been placed in police cars.

Prior to the delivery of opening statements, the Trial Justice ruled that the People would not be permitted to introduce either the fact that the police officers had conversations with civilians in the park or the substance of those conversations concerning a man with a gun. Defense counsel then informed the court of his intention to cross-examine Officer Switzer regarding a 1987 departmental suspension for the unauthorized discharge of his firearm while off duty and the underlying facts of that incident. The court informed defense counsel that if Officer Switzer were asked questions bearing upon his conduct as a police officer, the People would be entitled to establish the circumstances surrounding the officers' approach to the suspects with weapons drawn.

It is apparent that it was defense counsel's strategy to characterize Officer Switzer and his partner as "cowboys", overly aggressive police officers, who set upon a peaceful group of men for no apparent reason. Darryl Lewis' testimony that one of the officers went right to the spot where the bag containing the shotgun lay, when taken together with his testimony that the officers had harassed him and his two companions earlier that night, implies that the evidence was planted. The cross-examination of Officer Switzer about firing his weapon into the air five times in an off-duty incident was clearly designed to cast doubt on the credibility of his version of the events surrounding the arrest and to suggest his need to supply evidence to justify his armed approach to the suspects.

In view of the highly selective portrayal of events presented by the defense, the jury could be expected to speculate as to the source of the police officers' knowledge of the presence of a shotgun at the scene of the arrest (People v. Hernandez, 139 A.D.2d 472, 527 N.Y.S.2d 404). Evidence that a man with attire matching the defendant's was earlier seen displaying a shotgun in the park, causing people to scatter for the exits, provides a much-needed perspective. This information combined with the officers' testimony that, when they approached the group gathered in front of 535 West 51st Street, defendant threw a white bag into the shrubbery is pertinent to dispel any notion that the police may have employed illegal methods to obtain a conviction and then lied about the incident in an attempt to conceal their wrongdoing. Therefore, the evidence was received for the purpose of completing the narrative and enhancing the jury's understanding of the crime charged (People v. Hernandez, supra ). The probative value of the background evidence received outweighs any prejudice to defendant (People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59; People v. Fay, 85 A.D.2d 512, 444 N.Y.S.2d 629). Finally, we note that the Trial Justice provided numerous cautionary instructions that the purpose of the evidence was to afford a complete picture of the surrounding events (see, People v. Montanez, 41 N.Y.2d 53, 58, 390 N.Y.S.2d 861, 359 N.E.2d 371; People v. Fay, supra ).

There is some question as to whether Officer Switzer's departmental record, containing details of his suspension, has any bearing upon defendant's guilt or innocence insofar as it might reveal any bias, prejudice or ulterior motive relating to any issue or person involved in the case (People v. Gissendanner, 48 N.Y.2d 543, 548, 423 N.Y.S.2d 893, 399 N.E.2d 924; People v. Chang Gee Kim, 144 A.D.2d 572, 574, 534 N.Y.S.2d 427). However, having succeeded in introducing confidential information from the officer's departmental record, defendant cannot complain that the People were afforded the opportunity to introduce evidence supporting the propriety of his conduct on this occasion. Moreover, defense counsel was cautioned concerning the implications of his proposed strategy and chose to employ it nevertheless.

As to defendant's other contentions, the civilian reports to police of a man with a gun are not hearsay because they were not offered for the truth of the statements (People v. Inman, 80 A.D.2d 622, 436 N.Y.S.2d 63). Moreover, any error must be considered harmless in view of the overwhelming evidence of defendant's guilt (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787). Given the seriousness of the crime and defendant's criminal history, it also cannot be said that his sentence to the maximum term is excessive.

All concur except CARRO, J. who dissents in a memorandum as follows:

CARRO, Justice (dissenting).

The essential issue, in this fact-based case, is whether the defense was entitled to question one of the arresting officers about certain bad acts without triggering a counter attack by the People concerning evidence of uncharged criminal conduct by the defendant. Because I believe that the defense should have been permitted to elicit the information concerning the relevant bad acts of the officer without such a quid pro quo, I would hold that the court erred when it allowed into evidence the lengthy and detailed account of the uncharged crime.

Defendant was indicted for, and convicted of, criminal possession of a weapon in the third degree. Therefore the issue, of whether he possessed the weapon, was a narrow one. This was a simple case for the People, with uncomplicated facts. The testimony regarding events leading to defendant's arrest is as follows.

Shortly before defendant's arrest, a young unidentified woman allegedly told arresting officers, Joseph Dicanio and George Switzer, that a dark-skinned black man wearing a blue sweat suit or jogging suit had been waving a shotgun in Clinton Park on 11th Avenue and 51st Street. The woman allegedly declined to tell the officers her name, because she was in a methadone program and "did not want to get involved."

After receiving this tip, the officers drove through the park, looking for a suspect. They soon exited their vehicle, separated, and asked people in the park if they had seen anything. Switzer testified that one man told him he had seen a black man, wearing a blue jogging suit and toting a shotgun, leave the park, proceeding eastward.

The officers returned to their vehicle and began to canvass the area, although they did not turn on their lights and sirens. Two blocks from the park, they observed a group of people standing on the north side of West 51st Street. Switzer, the operator of the vehicle, turned and drove the wrong way up the street, allegedly because there was neither vehicular nor pedestrian traffic. In the middle of the block, in front of 535 West 51st Street, were four men. One of these men was defendant, who was wearing blue pants and a shiny blue tee shirt, and who had his back to the approaching police car. Both officers testified that as they approached, defendant...

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