People v. Carter

• Decision Date: 29 November 1990
• Citation: 564 N.Y.S.2d 992,566 N.E.2d 119,77 N.Y.2d 95
• Parties: , 566 N.E.2d 119 The PEOPLE of the State of New York, Respondent, v. Terrence CARTER, Also Known as Terrance Carter, Appellant. The PEOPLE of the State of New York, Respondent, v. Solomon WITHERSPOON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 992

564 N.Y.S.2d 992

77 N.Y.2d 95, 566 N.E.2d 119

The PEOPLE of the State of New York, Respondent, v. Terrence CARTER, Also Known as Terrance Carter, Appellant.

The PEOPLE of the State of New York, Respondent, v. Solomon WITHERSPOON, Appellant.

Court of Appeals of New York.

Nov. 29, 1990.

Certiorari Denied in Carter

April 15, 1991.

Andrea Hirsch and Philip L. Weinstein, New York City, for appellant in the first above-entitled action.

Steven A. Feldman, New York City, and Arza Rayches Feldman, Hauppauge, for appellant.

Robert M. Morgenthau, Dist. Atty. (Nikki Kowalski and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

Defendants were tried jointly before a jury and convicted of drug-related crimes. The common question in their appeals is whether the convictions should be set aside as invalid because the Assistant District Attorney who handled the prosecution--both in presenting evidence to the Grand Jury which returned the indictments and later in conducting the actual trial--was not licensed as an attorney. They advance two arguments: (1) that the appearance before the Grand Jury of the nonlawyer Assistant District Attorney constituted the presence of an unauthorized person before the Grand Jury in violation of CPL 190.25(3) requiring dismissal of the indictments as defective pursuant to CPL 210.20(1)(c) and 210.35(5); and (2) that, in any event, their prosecution by a person not duly admitted to practice as an attorney deprived them of a fair trial in contravention of their right to due process under the Federal and State Constitutions (U.S. Const. 14th Amend.; N.Y. Const., art. I, § 6). For reasons to be explained, we are not persuaded by either contention. Defendant Witherspoon also argues that the trial court committed a prejudicial error in admitting proof of uncharged crimes in violation of the rule of People v. Molineux, 168 N.Y. 264, 291-294, 61 N.E. 286. Because we find no basis for reversal in this or other points raised by defendant Witherspoon, the convictions in each case should be affirmed.

I

The particular drug transaction out of which defendants' convictions arose involved a sale of narcotics in Manhattan on January 28, 1987 to one Charles Humphrey. The main witness for the prosecution was Police Officer Higgins who, using high-powered binoculars, observed the sale which took place on the sidewalk at the southeast corner of West 123rd Street and Seventh Avenue. Higgins testified that he saw Charles Humphrey approach and talk to defendant Carter. Carter, he testified, took a small pink envelope from his pocket and handed it to Humphrey who, after apparently smelling the envelope, gave money to Carter. Humphrey put the envelope inside his coat and walked away. Carter then handed the money to defendant Witherspoon who had been standing about 10 feet away during the transaction. Higgins radioed the description of Humphrey and his location to Officer Hayes of the backup unit. Hayes arrested Humphrey at 124th Street and recovered the pink envelope from inside his jacket. In the envelope was vegetable matter which, chemical analysis later revealed, contained phencyclidine.

When Hayes returned to his backup post, Higgins resumed his surveillance of defendants. During the ensuing two hours, Higgins saw Carter and Witherspoon engage in what appeared to be transactions similar to the one involving Humphrey. Three to five people approached Carter, talked with him and gave him money in exchange for pink envelopes. On each occasion Carter gave the money he received to Witherspoon. After defendants' arrest, Officer Higgins identified them as the two men whom he had observed trading the envelopes for money.

Prior to the opening of trial the People had applied for an advance ruling on the admissibility of Higgins' testimony concerning defendants' dealings with other persons subsequent to the Humphrey sale. Over defendants' objection, the court determined that evidence of what amounted to "a continued course of conduct paralleling" the Humphrey sale was admissible "to establish that defendants were acting in concert". The evidence was accordingly admitted at trial.

The jury found both defendants guilty of criminal sale of a controlled substance in the fifth degree and, in addition, convicted defendant Witherspoon of criminal possession of a controlled substance, seventh degree. ¹ During the pendency of defendants' appeals to the Appellate Division and prior to argument, defense counsel learned of the unlicensed status of Daniel J. Penofsky, the Assistant District Attorney who presented the case to the Grand Jury and later represented the People as prosecutor in the trial. Penofsky, it appears, had never been admitted to the Bar although he had been prosecuting cases for 16 years. He was, however, a law school graduate.

Penofsky served as an Assistant District Attorney in Kings County for three years before becoming an Assistant District Attorney under the Special Narcotics Prosecutor, a position which he had held for 12 to 13 years. It was in this role as an assistant for the Special Narcotics Prosecutor, Sterling Johnson, that Penofsky handled the prosecution against defendants.

Although Penofsky's lack of admission to practice was not addressed in defendants' Appellate Division briefs, defense counsel raised the issue during oral argument and advised the Appellate Division that the identical question had been fully briefed in two other appeals involving Penofsky prosecutions scheduled to be argued in that court a few days later (People v. Munoz and People v. Sanchez-Medina ). In its unanimous affirmance in the instant appeals, the Appellate Division did not address the Penofsky issue. In an opinion released approximately five weeks later (People v. Munoz, 153 A.D.2d 281, 550 N.Y.S.2d 691), however, the Appellate Division rejected the same arguments which defendants assert here. Distinguishing the situation where the prosecuting authority has no jurisdiction over the subject matter (see, People v. Di Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732), the Munoz court noted that the Grand Jury presentation was by a duly appointed Assistant District Attorney representing a prosecutor's office which did have jurisdiction and that this "authority [was] extended to Assistant District Attorneys as appointees" (153 A.D.2d 281, 283, 550 N.Y.S.2d 691). Although the court decried Penofsky's flagrant conduct as amounting to a fraud on the appointing authority, it held that the fact that defendants had been prosecuted by a nonlawyer did not, without more, require a reversal. It observed that there "is currently no rule in New York to the effect that prosecution by an unadmitted lawyer entitles a defendant to an automatic reversal." (Id., at 284, 550 N.Y.S.2d 691.) For reasons which will be explained, we agree with these conclusions of the Appellate Division in Munoz and Sanchez-Medina and hold that Penofsky's unadmitted status does not require a reversal in the instant appeals.

In its unanimous decision affirming the convictions before us, the Appellate Division addressed only issues unrelated to Penofsky. It rejected defendants' Molineux argument and held that Higgins' testimony concerning the subsequent exchanges was properly admitted on the issue of concerted action as well as on the question of defendants' identity. The court observed that "at trial the element of acting in concert was hotly disputed." (People v. Witherspoon, 156 A.D.2d 306, 307, 549 N.Y.S.2d 6.) Moreover, it pointed out, identity was in issue as well since defendants "were not arrested until two hours after the charged sale." (Id., at 308, 549 N.Y.S.2d 6.) The court concluded that under "these circumstances, Officer Higgins' testimony was also admissible to establish that both defendants were under surveillance for the entire period after the sale and before the arrest." (Id., at 308, 549 N.Y.S.2d 6.)

II

Defendants' primary argument is that because Penofsky was not a lawyer he could not properly serve as an Assistant District Attorney and, therefore, his presence before the Grand Jury was not authorized under CPL 190.25(3)(a). ² It follows, defendants maintain, that because an unauthorized person was present in the Grand Jury room the proceedings were defective (see, CPL 210.35[5] and the indictments should have been dismissed (see, CPL 210.20[1][c]. Defendants refer essentially to three cases in support of their position: People v. Di Falco, 44 N.Y.2d 482, 406 N.Y.S.2d 279, 377 N.E.2d 732, supra, People v. Dunbar, 53 N.Y.2d 868, 440 N.Y.S.2d 613, 423 N.E.2d 36 and People v. Beauvais, 98 A.D.2d 897, 470 N.Y.S.2d 887. Their reliance on these cases is misplaced.

In People v. Di Falco (supra), in holding that the Special Prosecutor was unauthorized to appear before the Grand Jury, we specifically noted that the prosecutor had "concede[d] that he lacked jurisdiction to prosecute the matter" (44 N.Y.2d, at 485, 406 N.Y.S.2d 279, 377 N.E.2d 732). ³ We held simply that "where a prosecutor lacks the requisite authority he is not a proper person before the Grand Jury and those proceedings conducted by him before the Grand Jury are defective." (Id., at 486, 406 N.Y.S.2d 279, 377 N.E.2d 732.)

The converse of the Di Falco situation was presented in People v. Dunbar (supra), where defendants claimed that a nonresident Special Assistant District Attorney's presence before the Grand Jury was unauthorized because no waiver of the residency requirement had been obtained in compliance with the Nassau County Administrative Code. Unlike Di Falco, there was no lack of the underlying prosecutorial jurisdiction and for that very reason the Court held that the indictment was not defective under CPL 210.35(5). We stated: "[i]t is true that presentation to a Grand Jury by one who has no jurisdiction over the subject matter so impairs the integrity of the Grand Jury as to require...