People v. Hilts
| Decision Date | 22 February 1996 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jeffrey HILTS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Drew A. Lochte, Schenectady, for appellant.
Robert M. Carney, District Attorney (Alfred D. Chapleau, of counsel), Schenectady, for respondent.
Before CARDONA, P.J., and MIKOLL, CREW, YESAWICH and PETERS, JJ.
Appeal from a judgment of the County Court of Schenectady County (Aison, J.), rendered June 22, 1992, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the fourth degree.
Defendant was arrested on a bench warrant executed by officers of the Schenectady Police Department on December 19, 1990 in the City of Schenectady, Schenectady County. A search of his person revealed five baggies containing a white powder later determined to be cocaine and a small amount of marihuana. Because he agreed to work undercover for the police, defendant was charged only with a violation of unlawful possession of marihuana. He pleaded guilty to that charge in Schenectady Police Court on January 15, 1991. Defendant failed to perform as promised. He was subsequently indicted for criminal possession of a controlled substance in the fourth degree. Prior to trial, defendant moved to dismiss contending, inter alia, that his conviction for unlawful possession of marihuana barred a separate prosecution for possession of cocaine, since both charges were based upon the same act or criminal transaction (see, CPL 40.20[2] ) and the uncharged cocaine offense should have been joined for prosecution with the earlier marihuana offense (see, CPL 40.40[2] ). County Court denied the motion. Following a jury trial, defendant was convicted of the crime charged and sentenced to 5 to 15 years' imprisonment. Defendant appeals.
Initially, we reject defendant's claim that his guilty plea to unlawful possession of marihuana, a violation (see, Penal Law § 221.05), prohibited a separate prosecution for the offense of criminal possession of a controlled substance in the fourth degree, a class C felony (see, Penal Law § 220.09[1] ). While we agree with defendant that both offenses arise from the same criminal transaction, 1 where "[e]ach of the offenses as defined contains an element which is not an element of the other, and the statutory provisions defining such offenses are designed to prevent very different kinds of harm or evil" (CPL 40.20[2][b], a separate prosecution for each is permissible as an exception to the general statutory rule against successive prosecutions. Clearly, the charged offenses here contain different elements in that one proscribes possession of marihuana while the other proscribes possession of a narcotic.
In determining whether prosecutions under these statutes are addressed to different kinds of harm or evil, we look to the "statutory provisions defining such offenses" (CPL 40.20[2][b]; see, Matter of Kaplan v. Ritter, 71 N.Y.2d 222, 229, 525 N.Y.S.2d 1, 519 N.E.2d 802). By enacting Penal Law § 221.05 as part of the "Marihuana Reform Act of 1977" (L 1977, ch 360), the Legislature determined that people who possess small amounts of marihuana for personal use should not be "subjected to unduly harsh sanctions" (L 1977, ch 360, § 1) and, therefore, decriminalized this offense, making it a violation punishable by a fine (see, Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 221, at 86). On the other hand, criminal possession of a controlled substance in the fourth degree is a class C felony punishable by up to 15 years in prison (see, Penal Law § 220.09[1]; § 70.00[2][c]. The Legislature has not relaxed the proscription against the possession of narcotic drugs like cocaine, as these statutes are aimed at the evil of narcotics trafficking (see, Matter of Abraham v. Justices of N.Y. Supreme Ct. of Bronx County, 37 N.Y.2d 560, 567, 376 N.Y.S.2d 79, 338 N.E.2d 597). Inasmuch as a prosecution for cocaine possession under Penal Law § 220.09 satisfies an objective different from a prosecution for marihuana possession under Penal Law § 221.05, we find that the exception under CPL 40.20(2)(b) properly applies to this case. Therefore, defendant's prosecution for criminal possession of a controlled substance in the fourth degree is not barred under CPL 40.20, nor under CPL 40.40, which prohibits separate prosecutions of offenses deemed "joinable" (CPL 200.20[2]; see, People v. Sharpe, 166 A.D.2d 620, 560 N.Y.S.2d 905, lv. denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95).
We next turn to defendant's claim that he was denied a fair trial due to prosecutorial misconduct. Prior to the commencement of trial, County Court ruled that evidence of defendant's possession of marihuana at the time of his arrest was not to be elicited, but noted that if the defense opened the door it would deal with the matter at that time. The People's witnesses made no reference to the marihuana offense at trial. However, on direct examination for the defense, Lewis Hilts, defendant's brother, referred to its discovery during the arresting officer's street search of defendant's person. Apparently aware that he had opened the door on this issue, defense counsel immediately narrowed his line of...
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