People v. Colon

• Decision Date: 02 November 1989
• Citation: 547 N.Y.S.2d 11,151 A.D.2d 146
• Parties: The PEOPLE of the State of New York, Respondent, v. Felix COLON, Jr., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 11

547 N.Y.S.2d 11

151 A.D.2d 146

The PEOPLE of the State of New York, Respondent, v. Felix COLON, Jr., Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 2, 1989.

Richard L. Kellner, Bellerose, of counsel (Billie Manning, New York City, with him on the brief; Robert T. Johnson, attorney) for respondent.

Jay Shapiro, for defendant-appellant.

Before MURPHY, P.J., and SULLIVAN, ROSS, MILONAS and RUBIN, JJ.

ROSS, Justice.

Defendant appeals from a judgment, which convicted him of two sales of controlled substances. Before us, he contends that the Trial Court committed reversible error, in that, inter alia, it submitted a redacted portion of the transcript of testimony of a witness to the jury, for use during deliberations; and, it permitted testimony about a sale of heroin made by defendant's wife, which was not charged in the indictment.

By Indictment, Number 3868, filed November 7, 1983, a Bronx Grand Jury charged that defendant and Mr. Eric Vega, a/k/a Eddie Vega DeJesus, "while aiding each other", committed the crimes of criminal sale of a controlled substance in the first degree (Penal Law (PL) § 220.43), criminal sale of a controlled substance in the second degree (PL § 220.41), criminal sale of a controlled substance in the third degree (PL § 220.39) (two counts), criminal possession of a controlled substance in the second degree (PL § 220.18), criminal possession of a controlled substance in the third degree (PL § 220.16) (five counts), and, criminal possession of a controlled substance in the fourth degree (PL § 220.09). Subsequently, in November 1984, defendant and his co-defendant, Mr. DeJesus, were jointly tried.

At trial, the only testimony was presented by the People's witnesses, since neither defendant nor Mr. DeJesus presented any witness testimony.

The testimony of the People's witnesses at trial indicates, in substance, as follows:

In the Spring of 1983, as a result of information received from a confidential informant, which indicated, that defendant was engaged in the illegal sale of controlled substances, police officers assigned to the Bronx County Narcotic Squad (Squad) commenced an investigation.

On the afternoon of May 25, 1983, the confidential informant brought undercover Detective Charles Serrano (Detective Serrano), who was assigned to the Squad, to Apartment 1-C, located in 282 Brook Avenue, Bronx County, which was the defendant's residence, in order that the detective could buy drugs from the defendant. Although, on this occasion, Detective Serrano was unable to meet defendant, since defendant's wife stated defendant was asleep, he did negotiate with the defendant's wife for the purchase of twenty glassine envelopes of heroin. Thereafter, while defendant's wife peered out of the front door of the apartment, Detective Serrano entered the adjacent hallway, and, received the subject drugs from a person named "Soaky". Upon leaving that day, Detective Serrano told defendant's wife that "if the merchandise was good, I would be back ..." (see, Trial Transcript (TT), at 946).

Subsequently, over the course of the month of June 1983, Detective Serrano testified he met, at least seven times, with defendant, in the apartment, mentioned supra, to negotiate the purchase of drugs. In pertinent part, Detective Serrano testified he informed defendant that his name was "Nicky" and "that I was coming from Connecticut ... [and] I had my own operation in the narcotic trade and that I was trying to find myself a good connection to supply me with the merchandise that I needed" (see, TT, at 681).

Furthermore, Detective Serrano testified that, on June 28, 1983, when he told defendant he needed cocaine and heroin, the defendant "said that he was going to ... hook ... [Detective Serrano] up with one of his cousins that was in the business" (see, TT, at 682-683) [material in brackets added]. Pursuant to defendant's offer, Detective Serrano and the defendant agreed to meet the next day.

Shortly after 12:05 P.M., on June 29, 1983, Detective Serrano met with defendant in the Brook Avenue apartment, and, defendant told the undercover officer he had arranged the drug deal, but, he still had to make a few telephone calls. At approximately 3:00 P.M., they left that apartment, and, Detective Serrano drove defendant, in the officer's Volkswagen, to Faile Street, in the Hunts Point area, where they unsuccessfully looked for a person named Mr. Lucho, who was one of the defendant's drug connections. Thereafter, for approximately forty-five minutes, they drove to a number of different locations, until, at approximately 3:45 P.M., they parked in front of 1580 Theriot Avenue.

Within a few minutes, when a black car parked nearby, the defendant informed Detective Serrano "that's my cousin" (see, at 695), and, exited the undercover officer's car, in order to speak to his cousin. After speaking with his cousin, defendant returned to inform Detective Serrano that he had to accompany his cousin to pick up an automobile, which the cousin had just purchased, and, defendant then left the scene in the black car, while Detective Serrano waited in his own car. Sometime later, Detective Serrano observed the defendant return to the scene, driving the black car, and, defendant was following a gold colored car, with two people in it. Subsequent to the black and gold cars parking, defendant introduced Detective Serrano to his cousin "Eddie", who was co-defendant, Mr. DeJesus.

After some small talk between the undercover officer and Mr. DeJesus about Mr. DeJesus' new car, Detective Serrano testified: "I told ... [defendant and Mr. DeJesus] that I wanted to take care of business. It was getting a little late. He [defendant] said, 'All right,' and he spoke to ... [Mr. DeJesus] and then they walked inside ... [1580 Theriot Avenue]." (see, TT, at 703-704) [material in brackets added]. The undercover officer returned to his car, and, waited. Shortly afterwards, defendant emerged from that building, came over to the undercover officer's car, and, showed Detective Serrano a sample of cocaine, which defendant stated was being sold by Mr. DeJesus. In response, Detective Serrano told defendant that he wanted one ounce of cocaine, and, six grams of heroin. Thereafter, defendant went back into the building, mentioned supra.

Sometime later, defendant and Mr. DeJesus came out of that building, and, while defendant entered the undercover officer's car, Mr. DeJesus entered the gold car. Thereafter, these cars were driven to the vicinity of 1571 Leland Avenue, where they parked.

Subsequently, the undercover officer and defendant entered the gold car. In that car, Detective Serrano testified that he negotiated the purchase of a quantity of cocaine and heroin, and, in exchange for packages, which contained seven-eighths of an ounce of cocaine, and, over one-eighth of an ounce of heroin, Detective Serrano gave Mr. DeJesus $3,850.00. Both defendant and Mr. DeJesus handled the drugs during this June 29th transaction.

Following the June drug sale, during the second week of August 1983, the undercover officer negotiated with defendant the purchase of three ounces of cocaine, and, the defendant stated the price would be between $5,000.00 and $6,000.00. This sale was to take place on August 13, 1983. On that day, at about 12:45 P.M., Detective Serrano arrived at defendant's Brook Avenue apartment, where the undercover officer waited until approximately 2:35 P.M., when he and defendant left that apartment, and, travelled, in Detective Serrano's car, to 1106 West Farms Road. At this location, they waited, for about two hours, and, then they drove to 634 Manida Avenue, where defendant exited the undercover officer's car, and, met Mr. DeJesus in the street. Thereafter, defendant and Mr. DeJesus entered 634 Manida Avenue, and, in a short while, they emerged from that building. Now, they instructed Detective Serrano to drive his car, and, follow the gold car, mentioned supra, which the defendant and, Mr. DeJesus entered, to Barretto Street Park (park).

After their arrival, the undercover officer, defendant, and Mr. DeJesus exited their respective cars, went into the park, and, sat down together on a bench. While in that location, defendant took out a package of cocaine, which he handed to Mr. DeJesus, who, in turn, gave it to the undercover officer. As soon as the undercover officer completed his examination of that package, he returned it to Mr. DeJesus. Furthermore, Detective Serrano testified that he told defendant and Mr. DeJesus that he would soon need a kilogram of cocaine, and, that, while the cocaine purchased in June was of good quality, the heroin did not meet his standards. Mr. DeJesus assured the undercover officer that he would provide a better quality of heroin, and, that they would do more business in the future. The August 13th sale was concluded, in Detective Serrano's car, when the undercover officer gave Mr. DeJesus $5,400.00 in exchange for a package, which contained over two and seven-eighths of an ounce of cocaine.

On October 12, 1983, defendant was arrested in front of his Brook Avenue apartment, and, on October 22, 1983, Mr. DeJesus was arrested.

Upon the basis of the evidence presented, the jury convicted defendant and Mr. DeJesus of the crimes of criminal sales of controlled substances in the first, and, second degree.

On appeal, defendant contends that the Trial Court committed reversible error, when it submitted to the jury, for use during its deliberations, a redacted transcript of a portion of the trial testimony of Detective Serrano, who was the undercover officer. In substance, defendant claims that this action of the Trial Court deprived him of his right to be present at all material portions of the trial, as provided by Criminal Procedure Law (CPL) § 310.30.

CPL § 310.30 reads:

"Jury deliberations; request for information

At any time during its deliberation, the jury may...