People v. Buccina

• Decision Date: 10 November 1986
• Citation: 124 A.D.2d 983,508 N.Y.S.2d 806
• Parties: PEOPLE of the State of New York, Respondent, v. Martin BUCCINA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 806

508 N.Y.S.2d 806

124 A.D.2d 983

PEOPLE of the State of New York, Respondent, v. Martin BUCCINA, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 10, 1986.

Frank V. Zinni, Batavia, for appellant.

Robert Noonan, Batavia by David Gann, for respondent.

Before DENMAN, J.P., and BOOMER, GREEN, PINE and BALIO, JJ.

MEMORANDUM:

The court improperly permitted the prosecution to introduce evidence of uncharged sales of marihuana by defendant. Proof of these uncharged crimes was not probative of any element of the crimes charged and served only to establish defendant's predisposition to commit the crimes charged, criminal sale of marihuana and criminal possession of marihuana on June 21, 1984 and July 17, 1984 (see, People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59). Contrary to the People's contention, evidence that defendant sold marihuana on other occasions was not admissible to prove the identity of the seller on June 21 and July 17 because the modus operandi of the several crimes was not so unique as to serve as proof that they were committed by the same person (see, People v. Condon, 26 N.Y.2d 139, 144, 309 N.Y.S.2d 152, 257 N.E.2d 615; cf. People v. Kennedy, 27 N.Y.2d 551, 313 N.Y.S.2d 123, 261 N.E.2d 264; cf. People v. Allweiss, 48 N.Y.2d 40, 47-48, 421 N.Y.S.2d 341, 396 N.E.2d 735).

Nor was the evidence of other sales admissible as part of a general scheme or plan. Here, there was no showing that there was "a single inseparable plan encompassing both the charged and uncharged crimes" (People v. Fiore, 34 N.Y.2d 81, 85, 356 N.Y.S.2d 38, 312 N.E.2d 174). Each sale was separate and distinct and none depended upon the occurrence of another.

Judgment unanimously reversed on the law and new trial granted.