People v. Drew

• Citation: 160 A.D.2d 1100,554 N.Y.S.2d 742
• Parties: The PEOPLE of the State of New York, Respondent, v. Alfred DREW, Appellant.
• Decision Date: 19 April 1990
• Court: New York Supreme Court Appellate Division

Page 742

554 N.Y.S.2d 742

160 A.D.2d 1100

The PEOPLE of the State of New York, Respondent, v. Alfred DREW, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 19, 1990.

Fernande Rossetti, Albany, for appellant.

Sol Greenberg, Dist. Atty. (John E. Maney of counsel), Albany, for respondent.

Before KANE, J.P., and CASEY, WEISS, MERCURE and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered February 3, 1987, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (three counts), criminal injection of a narcotic drug and attempted criminal injection of a narcotic drug.

On February 28, 1986 there was a gathering of people in the apartment of Lisa Jackson in the City of Albany. Reportedly at Jackson's request, defendant brought to that gathering several glassine bags of a white powdery substance which the People maintain was heroin. At some time during the course of the evening the substance was injected into the bodies of Jackson and her boyfriend, Jeffrey Melber, and the next day was injected by Raymond Leigh and Wallace Toliver. Toliver took 11 envelopes after agreeing to help defendant sell them. At about 4:00 P.M. on that day Jackson became ill and died of causes apparently unrelated to the instant case. An investigation was conducted.

As a result of a search of the apartment, several items were seized including a piece of mirror with white powder residue; a box found in the medicine cabinet containing a black shoe lace, syringe, hypodermic needle and bottle cap "cooker"; an empty bottle cap found in the medicine cabinet; a syringe and needle found in a dresser drawer; and a plastic bag containing white powder which was found in a kitchen drawer. After testing by a forensic scientist, only the bottle cap "cooker" tested positive for the presence of narcotics. The forensic scientist who performed the autopsy of Jackson's body found the presence of substances including quinine but no traces of the presence of either heroin or morphine (i.e., metabolized heroin).

Both defendant and his companion, Warren Christopher, were indicted for three counts of criminal sale of a controlled substance in the third degree and two counts of criminal injection of a narcotic drug. Defendant's motions for severance were denied and a joint trial was held wherein Christopher chose not to testify but defendant testified on his own behalf. The evidence introduced by all parties will be described in more detail in our discussion of the issues raised on appeal. Ultimately, defendant was convicted of three counts of criminal sale of a controlled substance in the third degree, one count of criminal injection of a narcotic drug and one count of attempted criminal injection of a narcotic drug. He was given concurrent prison sentences, the greatest of which was 7 to 21 years. Two principal issues are raised by defendant on this appeal. These issues stem from the denial by County Court of defendant's motions for severance of the trial and the admission into evidence, over defendant's objection, of a statement made by Christopher.

Defendant contends that the statement made by Christopher to the police was ineffectively redacted and therefore improperly admitted into evidence at trial. The so-called Bruton rule (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476) recognizes the fundamental constitutional principle that extrajudicial statements made without the opportunity for cross-examination are admissible only against the person who made them. Accordingly, in the situation of a joint trial, a statement made by one defendant which inculpates a codefendant may not be received into evidence unless it can be, and is, effectively redacted (see, e.g., People v. Smalls, 55 N.Y.2d 407, 449 N.Y.S.2d 696, 434 N.E.2d 1063; People v. Jackson, 22 N.Y.2d 446, 293 N.Y.S.2d 265, 239 N.E.2d 869; People v. Burrelle, 21 N.Y.2d 265, 287 N.Y.S.2d 382, 234 N.E.2d 431). The burden of effective redaction rests with the People (see, People v. Wheeler, 62 N.Y.2d 867, 869, 478 N.Y.S.2d 254, 466 N.E.2d 846).

As to whether the statement was effectively redacted, a more thorough examination of the evidence must be first undertaken. In Christopher's statement, references to defendant by name were eliminated. The statement went on to describe how Christopher and an unnamed companion traveled to Albany together to see Jackson. After arriving at the Jackson apartment, Christopher's companion handed Jackson a box which contained glassine envelopes of heroin. Christopher stated that Jackson took one of the envelopes into the bathroom, and eventually called Christopher and his companion to the bathroom because she was having difficulty injecting herself. Christopher then "skin-popped" Jackson by inserting the needle straight into her arm because they were unable to inject a vein or artery. The statement goes on to describe how Christopher aided Melber in injecting the substance and how, on the next day, he and his companion negotiated with Toliver to sell heroin for them.

Looking to the evidence adduced at trial, Melber testified for the People and described how Christopher and defendant came together to Jackson's apartment that first day and helped Jackson inject the substance brought by defendant. Melber then entered the bathroom and, together with defendant and Christopher, prepared the contents of a glassine envelope and injected them. Melber testified that based on his personal knowledge and prior experience with heroin, this substance produced the same feeling as heroin, which was unlike that of other drugs that he had used in the past.

Leigh described how he arrived at Jackson's apartment the day after defendant and Christopher came to Albany. According to Leigh, Jackson had called him and requested his assistance in selling the envelopes. Leigh testified that he entered the bathroom and injected part of the contents of an envelope. Leigh testified that he had used heroin in the past on more than 200 occasions, and that the sensation in the instant case was similar to those prior experiences. According to Leigh, he drove with defendant and Christopher to the Arbor Hill section of Albany in order to look for purchasers. Leigh encountered Toliver, and the four returned to the Jackson apartment. Leigh testified that he then left to go to the store and, upon returning, drove Toliver to his place of employment.

Toliver testified that he injected himself with the contents of a packet. Toliver had used heroin in the past on more than 100 occasions and testified that the reaction on that day was similar to that of previous occasions. Toliver left the apartment with 11 envelopes after agreeing to help defendant sell them. Toliver testified that he met defendant and Christopher on the street after work, and gave defendant money and the remaining envelopes.

Defendant's testimony at trial describing the important facts was very similar to the assertions made in Christopher's statement and was also in line with the basic facts as recounted by Melber, Leigh and Toliver. Only with respect to the nature of the substance provided by defendant to these individuals does his testimony significantly differ. Defendant's testimony was that he had talked to Jackson, a former girlfriend, by telephone and that she had requested that he come to visit her and to bring with him some heroin. She stated that she needed it to use and also to sell in order to obtain money that she badly needed. Defendant testified that because he was concerned about her using heroin, he made inquiry upon visiting a drug dealer about the possibility of a subterfuge by giving...