People v. Butts

• Decision Date: 14 November 1991
• Citation: 576 N.Y.S.2d 393,177 A.D.2d 782
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey L. BUTTS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 393

576 N.Y.S.2d 393

177 A.D.2d 782

The PEOPLE of the State of New York, Respondent, v. Jeffrey L. BUTTS, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 14, 1991.

Kehoe, Merzig & Schebaum, P.C. (Kelley Eckmier, of counsel), Oneonta, for appellant.

Robert P. Nydam, Dist. Atty., Cooperstown, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, MERCURE and CREW, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Otsego County (Mogavero Jr., J.), rendered May 7, 1990, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (two counts) and criminal possession of marihuana in the fourth degree.

Defendant was indicted for two counts of criminal possession of a controlled substance in the third degree (possession with intent to sell) and one count of criminal possession of marihuana in the fourth degree. The charges resulted from search warrants executed at his residence at 37 1/2 Dietz Street in the City of Oneonta, Otsego County, where .76 of a gram (or approximately 1/38 of an ounce) of cocaine and 245 grams (just over a half of a pound) of marihuana were seized, along with certain items common with drug usage and sales, and, immediately after defendant's arrest, the seizure of .52 of a gram (or approximately 1/55 of an ounce) of cocaine along with drug-related items, including a triple beam balance scale, found at his father's residence at 20 Pleasant Street in Oneonta.

During the trial, the prosecution was permitted to present testimony describing two alleged cocaine sales by defendant to a friend during the week before his arrest. The prosecution argued that the purpose of this testimony was to show that defendant possessed the drugs with intent to sell rather than for his personal use. Defendant was convicted as charged and sentenced to two concurrent prison terms of 12 1/2 to 25 years on the cocaine charges and a concurrent term of one year on the marihuana charge. This appeal ensued.

Defendant first contends that it was error to admit evidence of the prior uncharged crimes. ¹ It is well established that evidence of uncharged crimes may not be admitted when the purpose is to demonstrate the defendant's criminal propensities (People v. Molineux, 168 N.Y. 264, 313, 61 N.E. 286; see, People v. Ingram, 71 N.Y.2d 474, 479, 527 N.Y.S.2d 363, 522 N.E.2d 439; People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735). One exception to the rule permits the admission of such evidence to prove the specific crime charged when it tends to establish the element of intent (People v. Molineux, supra, at 293, 61 N.E. 286), provided that the trial court carefully weighs the degree of probativeness with the potential for prejudice of the proffered evidence (People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59). Conceding, arguendo, that the purpose of the evidence of the uncharged crimes was probative of defendant's intent to sell and could be admitted for that purpose (see, People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808), the court failed completely to limit the jury's consideration of such evidence for this purpose. During a side bar prior to jury selection which County Court characterized as a Ventimiglia hearing, defendant failed to specifically request that a limiting instruction be given to the jury, the absence of which would indicate that the evidence was received for all purposes (see, People v. Bolling, 120 A.D.2d 601, 602, 502 N.Y.S.2d 77, lv. denied 68 N.Y.2d 665, 505 N.Y.S.2d 1030, 496 N.E.2d 688), and could well have led the jury to believe that the testimony was introduced to prove defendant's criminal propensities (see, People v. Guzman, 146 A.D.2d 799, 800, 537 N.Y.S.2d 277). In summation the prosecutor emphasized that defendant had made sales to the witness at least twice during the week preceding his arrest, creating the inference that he was a drug dealer. We find that the failure to give limiting instructions of any kind requires reversal in the interest of justice and a new trial on count one of the indictment (see, People v. Torres, 155 A.D.2d 226, 546 N.Y.S.2d 847; see also, CPL 470.15[6][a]; People...