People v. Castro
| Court | New York Supreme Court Appellate Division |
| Citation | 475 N.Y.S.2d 840,101 A.D.2d 392 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Carlos CASTRO, Defendant-Appellant. |
| Decision Date | 15 May 1984 |
John Goodwin, New York City, of counsel (Mary Cheasty Kornman, New York City, with him on the brief; Robert M. Morgenthau, Dist. Atty., attorney), for respondent.
Judith Waksberg, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-appellant.
Before ROSS, J.P., and CARRO, ASCH, FEIN and KASSAL, JJ.
The New York Drug Enforcement Task Force (Task Force) is composed of law enforcement officers who are assigned from the Federal government, the New York State Police and the New York City Police Department. Its principal assignment is to conduct long-term narcotics investigations of selected targets. For several months prior to February 28, 1979, the Task Force had been investigating the activities of Ramon Zurita (Zurita) and Nick Perez (Perez).
Based upon information received by the Task Force, Zurita was allegedly going to make a drug sale on the evening of February 28, 1979, from premises 53 Bruckner Boulevard in the Bronx. In anticipation of this act taking place, the Task Force set up an observation post in an unmarked police van parked directly across the street from those premises. This van was equipped with one-way mirrors and various communication devices. It was manned by New York State Police Investigators Donald L. Rohrmann (Rohrmann) and George Le Moine (Le Moine).
Fifty-three Bruckner Boulevard had three doors leading into it. On the extreme left, there was a large open bay door that led into the supply room of a beer distributorship. In the middle there was a roll top door, which was closed to within a foot of the bottom, and this door led into the distributorship's office. Finally, on the extreme right, there was a door that led into upstairs apartments.
At about 7:15 P.M., Rohrmann and Le Moine testified that they saw defendant and Zurita come out of the extreme right hand door. Prior to that moment, defendant had been unknown to the Task Force. Zurita and defendant walked over to the open door to the supply room, where they conversed for a few minutes, until Zurita left defendant and went into the distributorship's office. Defendant continued to stand by the open door. Within five to ten minutes, Zurita left the office and returned to the open door to talk further with defendant. After a few minutes, Zurita left defendant in front of the open door, and Zurita re-entered the door leading to the apartments. During the next hour or so, Rohrmann and Le Moine watched as the defendant spoke with approximately 25 to 30 persons, before each one of these persons entered one of the three doors, mentioned supra, that led into the subject premises. These persons would remain inside a little while and then leave the area.
Around 8:40 P.M., three undercover officers, who were assigned to the Task Force, appeared on the scene in an unmarked car, which they parked down the street from 53 Bruckner Boulevard. Two of these undercover officers exited this car and approached the defendant. They spoke to the defendant briefly and then went back to their car. Some minutes later Zurita appeared back on the street and went over to defendant. A short conversation ensued between them. Now Zurita went over to the car where the three undercover officers were, and spoke to them. As a result of this conversation, two of the undercover officers exited the car and followed Zurita through the door leading into the apartments. At about 8:55 P.M., one of these two undercover officers reappeared on the street and he was joined there by the third undercover officer, who heretofore had remained in the unmarked car. These officers now walked toward the subject premises. When they reached them, a prearranged signal was given by a Task Force field supervisor. Thereafter, all of the backup teams, including Rohrmann and Le Moine, converged on 53 Bruckner Boulevard for the purpose of making arrests in connection with an alleged drug sale that had been made by Zurita.
Rohrmann and Le Moine got out of their van and ran over to the open door where the defendant and two men were standing. They identified themselves as police officers. The defendant, and the two men with him, were told to turn around and put their hands up against the cartons along the supply room wall. According to Rohrmann's trial testimony:
[material in brackets added].
The weapon recovered from the defendant was an operable Smith and Wesson .38 calibre revolver, which was loaded with five rounds of ammunition.
After defendant's arrest, Le Moine advised defendant of his Miranda rights and searched him. In the course of this search Le Moine found a plastic envelope, which contained a white powder. An analysis of this powder indicated that it was cocaine and weighed just under two ounces, to wit: 56.04 grams. Defendant told Le Moine that he neither worked nor lived at the subject location.
Subsequently, defendant was indicted for his possession of the revolver and the cocaine.
The defendant testified in his own behalf. In substance, his defense was that he just happened to be present during the raid. He said he regularly jogged from 149th Street and the Grand Concourse in the Bronx to 99th Street in Manhattan and he would pass 53 Bruckner Boulevard. The night of the raid was the first time he had ever stopped at that location and that he paused there at about 8:00 P.M. to buy a soda from the beer distributorship. He drank the soda in front of the open door, while standing on the sidewalk. At about 8:15 P.M., Zurita, whom he did not previously know, asked him, whether the soda was cold, and then they talked together for about fifteen minutes, at which time Zurita left. As defendant continued to stand on the sidewalk with a couple of other men, Rohrmann and Le Moine ran up and pushed the three of them into the supply room. When Le Moine took the gun away from defendant, allegedly Le Moine and Rohrmann hit him. Defendant contended that Le Moine told him that the subject gun belonged to a police officer. In his testimony, defendant explained that he had obtained the gun about a month before, when he allegedly took it away from an alleged robber, who claimed to be a police officer. However, defendant admitted he neither reported this alleged robbery nor his possession of the gun to the police. Also, defendant denied that he possessed the cocaine that Le Moine had testified he found, when he searched defendant.
Without defense objection, the People called three rebuttal witnesses. In total, their testimony took up only seventeen pages in a 461-page transcript. In rebuttal, (1) Le Moine and Rohrmann testified that they never struck defendant, other than during the struggle over the gun that the defendant admitted he possessed; (2) Le Moine denied telling the defendant that the defendant's gun formerly belonged to a police officer; and, (3) both Le Moine and Rohrmann denied, based upon their examination of the beer distributorship and its supply room, that there was any soda in that location on the night of the arrest.
The third rebuttal witness was Santiago Martinez (Martinez), who is a New York City Police Officer assigned to the Task Force. Martinez testified that he was one of the three undercover officers in the unmarked car. Furthermore, he testified that he and another officer got out of the car at about 8:40 P.M. on February 28, 1979 and approached the defendant. According to Martinez, defendant was standing in front of the subject premises, and Martinez asked defendant, in Spanish, whether Zurita was there. Subsequent to defendant replying that Zurita was not there, Martinez gave defendant his name and told defendant to give Zurita a message that Martinez would be waiting for Zurita in the car.
We find that the guilty verdict is fully supported by the evidence.
Our dissenting brother contends that, because defendant had not been indicted for selling drugs, the People's presentation of their case against him was prejudicial since it implied "that he was guilty of acting in concert or conspiring to sell drugs, and because the prosecutor improperly presented 'rebuttal' testimony on purely collateral matters." We disagree.
"The trial court has the discretion to admit some evidence of other crimes when it is needed as background material ... and the People's case might well have been prejudiced if their witnesses had given only generalized accounts ... without supplying any particulars" (People v. Montanez, 41 N.Y.2d 53, 58, 390 N.Y.S.2d 861, 359 N.E.2d 371). The instant case was presided over by an experienced trial judge, who was in complete control of the proceeding and sensitive to the defendant's rights. During the course of the prosecutor's opening, defense counsel objected to any reference by her to the nature of the Task Force investigation. The Trial Court, in denying that objection, stated to counsel, outside the presence of the jury, in pertinent part:
"Obviously no full narration will be permitted in regard to the ongoing investigation involving other people, but it seems to me unreasonable to believe that this case can have any meat on its bone (sic) without some reference to what the officers were doing there, what they saw when they were there and why they arrested this defendant."
Based upon our...
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