People v. Charles

• Decision Date: 14 September 1987
• Citation: 519 N.Y.S.2d 921,137 Misc.2d 111
• Parties: The PEOPLE of the State of New York v. Dennis CHARLES and Fritz DePass.
• Court: New York Supreme Court

Page 921

519 N.Y.S.2d 921

137 Misc.2d 111

The PEOPLE of the State of New York v. Dennis CHARLES and Fritz DePass.

Supreme Court, Special Term Kings County, Part 6.

Sept. 14, 1987.

Elizabeth Holtzman, Dist. Atty., Asst. Dist. Atty. Valentina Hosking, for the People.

Gary Alexion of Legal Aid, Brooklyn, for Fritz DePass.

Joshua Horowitz, Brooklyn, for Dennis Charles.

HERBERT KRAMER, Justice.

Is trial testimony of acts committed and statements made by drug seekers within a short time after seller's arrest admissible? The court holds that such statements are not hearsay and are admissible to illustrate a defendant's state of mind.

Facts

Police were engaged in surveillance of a small multiple dwelling, and its environs from several hundred feet away. They observed a steady stream of people entering a side alley and exiting shortly thereafter, some peering at a small hand-held item.

After a time, the officers went through the alley and found a litter-strewn lot in the back of the premises, a series of windows and a doorway containing a missing peephole typically used in drug sales called "peephole operations". An officer knocked at the door, and was asked what he wanted. He replied, "What do you have?", and was told, cocaine and marijuana.

The officers identified themselves and were told to and did enter the basement through an inside stairway, the only operative exit since the outside door had been bolted and reinforced shut. In the basement, the officers recovered marijuana and empty vials used to store "crack", a cocaine derivative. They inspected a dumbwaiter whose shaft ended four feet above the basement floor and in a canvas bag suspended approximately seven feet above the bottom of the dumbwaiter, found over fifteen hundred vials of crack, weighing more than four ounces. The canvas bag was equally accessible to the occupants of the first floor and the basement.

While the officers searched the basement, there was a continuing series of knocks on the back door; persons on the other side of the door were asking to purchase narcotics. The drug seekers passed money through the peephole and on one occasion, when the police officer responded that the amount was not sufficient, pushed a wristwatch through the door.

Defendants contend that the post-arrest statements of the drug seekers are hearsay and that the state of mind of a listener cannot be proved by statements of a speaker. Furthermore, they allege that these acts and statements are irrelevant, since they took place after their arrest. Finally, they claim that the testimony of the acts and statements are so prejudicial as to outweigh any limited probative value.

Discussion

Hearsay is an oral or written assertion, or non-verbal condu intended as an assertion, made by a person other than while testifying, offered in evidence to prove the truth of the matter asserted. Proposed New York Code of Evidence, sec. 801 [1982]; Cf. Richardson, Evidence, sec. 200 [Prince 10th ed.]. Ordinarily, a witness may be cross-examined regarding a fact of which he claims personal knowledge. However, where hearsay is involved, a more limited opportunity to cross-examine exists. This limitation is the major justification for the exclusion of hearsay. Richardson, Evidence, sec. 201 [Prince 10th ed.].

Acts and statements are not hearsay when they evidence state of mind. State of mind may include knowledge, intent, motive, common plan, mental attitude, pain or bodily health. People v. Satiro, 132 A.D.2d 717, 518 N.Y.S.2d 194 (1987); People v. Vails, 43 N.Y.2d 364, 401 N.Y.S.2d 479, 372 N.E.2d 320 (1977); People v. Crandall, 67 N.Y.2d 111, 500 N.Y.S.2d 635, 491 N.E.2d 1092 (1986); See also, Richardson, Evidence, sec. 203-205 [Prince 10th ed.]; United States v. Beechum, 582 F.2d 898 (5th Cir.1978). Proposed New York Code of Evidence secs. 801, 803. In the case at bar, knowledge of possession and intent to sell are elements of the charged crime. Here, numbers of people were seen approaching a location for drugs, which may indicate knowledge of drug availability at that location. This knowledge, possessed by the purchasers, may be shared by the purveyor or possessor.

Thus, statements can be used to show state of mind of the hearer or declarant. Richardson, Evidence, sec. 205 [Prince 10th ed.]; People v. Harris, 209 N.Y. 70, 102 N.E. 546 (1913); Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249, 71 A.L.R.2d 331 (1958). See also, State v. Tolisano, 136 Conn. 210, 70 A.2d 118, 13 A.L.R.2d 1405 (1949).

In Tolisano, supra, defendant was convicted of maintaining a room with apparatus for making wagers. The court, in affirming, held that police testimony of telephone conversations received from bettors after the premises were secured was admissible. The court admitted the testimony, not to establish the truth of the facts asserted in the telephone calls to the apartment, but to establish the calls as verbal acts to show that the defendant was engaged in the activities charged. See also, State v. White, 107 R.I. 306, 267 A.2d 414 (1970); U.S. v. Barbati, 284 F.Supp. 409 (1968). Similarly, in the instant case, the statements and acts of the persons attempting to purchase narcotics may be introduced to indicate that the defendants were aware of the presence of narcotics and intended to sell drugs.

Further, such acts and statements that are admissible as nonhearsay can be subsequent, prior or contemporaneous to the time of the crime charged. United States v. Hearst, 563 F.2d 1331 (9th Cir.1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Terebecki, 692 F.2d 1345 (11th Cir.1982); United States v. Hadaway, 681 F.2d 214 (4th Cir.1982); United States v. Peskin, 527 F.2d 71 (7th Cir.1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976).

Additionally, courts will admit evidence of collateral crimes or acts when the crime or act in question is part of the res gestae of the charged offense and takes place during the charged offense or immediately before or after. United States v. Kloock, 652 F.2d 492 (5th Cir.1981); United States v. Lamb, 575 F.2d 1310 (10th Cir.1978), cert. denied sub nom. Clary v. U.S., 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978).

Prior, subsequent or contemporaneous crimes or acts are most frequently introduced to indicate intent. United States v. Marvin, 687 F.2d 1221, 1228 (8th Cir.1982), cert. denied, 460 U.S....