People v. Hernandez
| Decision Date | 28 April 1988 |
| Citation | 527 N.Y.S.2d 404,139 A.D.2d 472 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jose HERNANDEZ, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
D. Krone, New York City, for respondent.
R.N. Allman, New York City, for defendant-appellant.
Before ASCH, J.P., and ROSENBERGER, ELLERIN and SMITH, JJ.
Judgment, Supreme Court, New York County (Joan Carey, J.) rendered January 8, 1986 which convicted defendant after jury trial of criminal possession of a weapon in the third degree and sentenced him to a prison term of three to six years, unanimously affirmed.
Defendant was convicted of criminal possession of a weapon in the third degree arising from his arrest by police officers who stopped him while driving his girlfriend's car. Before defendant exited the car, he had quickly leaned forward and reached down towards the floor of the car. The arresting officer recovered from the front floor of the car, near the driver's seat where defendant had reached, a cocked but unloaded pistol, and two bullets.
Defendant urges that the conviction must be reversed on the ground that he was deprived of a fair trial when the People elicited testimony from the complaining witness that she saw the defendant brandishing a gun "many times" in the apartment building where they both lived. He claims that this is reversible error because the prosecutor persisted in repeatedly bringing forth this prejudicial testimony, and that he did so in flagrant violation of a ruling at a pre-trial hearing explicitly precluding the prosecutor from inquiring as to defendant's possession of a weapon prior to the time of the instant arrest.
A careful review of the record indicates that these assertions are inaccurate, and that the witness' fleeting reference neither violated any prior court ruling nor prejudiced the defendant, whose guilt of the crime charged was proved by overwhelming evidence.
The complaining witness, Linda Arvelo, resided in the same apartment house as did the defendant, 195 Stanton Street on the Lower East Side of Manhattan. Arvelo had complained to the police many times about defendant's conduct. On October 14, 1984, two days before defendant's arrest, defendant brandished a gun and harassed the complainant. At 5:00 P.M. on October 16, 1984, Arvelo noticed defendant in the lobby stairwell carrying a gun. Arvelo notified Police Officer Cuoco, who happened to be on foot patrol on this block at the time, and Cuoco, together with several other Police Officers she had summoned, entered the building and followed defendant up the stairs to his second floor apartment. Before the police officers could apprehend him, the defendant entered his apartment and locked his door and refused the police requests to enter the apartment. The police waited about ten or fifteen minutes and then left the building. Outside, Arvelo pointed out a black Pontiac Firebird with a badly dented right front fender parked on the street. Officer Cuoco radioed a check on the car and learned that it was not stolen and was registered in the name of a woman (later discovered to be defendant's girlfriend). Fifteen minutes later, Arvelo and Police Officers Cuoco and Scibetta each saw defendant leave the building, enter the Firebird, and drive off.
About 7:00 P.M. that evening, Police Officers Sarno and Scibetta were on patrol on Stanton Street, discussing the events of the day, when defendant drove by in the Firebird and parked it a block away, leaving the headlights on and motor running. As the police officers approached the car, defendant made eye contact with them and quickly leaned forward and reached his arms down toward the floor of the car under the driver's seat. Police Officer Sarno ordered defendant out of the car and frisked him, finding no gun. Meanwhile Police Officer Scibetta looked inside the car and saw the gun and two bullets on the floor near the driver's seat where defendant had just reached down. The officers then arrested the defendant.
Before the trial began, a brief colloquy was held by the attorneys and Justice Carey. Defendant's counsel, who had only recently entered the case, learned that the People planned to call Ms. Arvelo as a witness and offer testimony as to the events of the 14th as well as those of the day of the arrest. As a result of the incident on October 14, a criminal court complaint had been issued, charging defendant with the crime of menacing. Defense counsel argued that defendant would be prejudiced if testimony as to the incident on the 14th was permitted. Counsel also argued that he himself was prejudiced by having only recently learned of the menacing charge because he was only prepared to try what he termed a "simple gun in a car" case.
Justice Carey advised counsel that the People had not withheld this information and that defendant's prior attorney was fully aware of all these relevant facts and should have brought them to the attention of the new counsel. Justice Carey also noted that counsel had been present at a hearing held the day before (which is not transcribed and not part of the record submitted to this Court) at which the issue was raised. Justice Carey finally granted the request in part and ruled that the people could not use evidence of the menacing charge:
The case then...
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