People v. Johnson
| Decision Date | 27 November 1996 |
| Citation | 233 A.D.2d 761,650 N.Y.S.2d 408 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Shawn A. JOHNSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Richard J. Rich Jr., Public Defender, Elmira, for appellant.
James T. Hayden, District Attorney (John R. Trice, of counsel), Elmira, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.
Appeal from a judgment of the County Court of Chemung County (Danaher Jr., J.), rendered January 3, 1994, upon a verdict convicting defendant of the crime of criminal possession of a controlled substance in the first degree.
As of May 1993, defendant had supplied Allen Gordon with cocaine for approximately 1 to 1 1/2 years. On a number of occasions, defendant gave Gordon cocaine in exchange for Gordon's assistance in transporting drugs into the City of Elmira, Chemung County. On those occasions, to avoid driving his own vehicle (which the police may have connected with area drug trafficking), defendant would telephone Gordon and request that they meet at one of several prearranged locations outside the City so that Gordon could drive defendant and the drugs into the City. One of those calls came on May 18, 1993, at a time when Gordon had resolved to rid himself of his cocaine habit by eliminating his supplier. After he got off the phone with defendant, Gordon called the police and told them of his past experience with defendant and that he would be driving outside the City to meet defendant later that night.
Gordon and the police devised a plan whereby Gordon would make the rendezvous with defendant and return to the City by a prearranged route, where the police would maintain surveillance. After Gordon entered the City, he would commit an intentional vehicular infraction so as to provide the predicate for a stop of his vehicle and, finally, Gordon would consent to a search of the vehicle. Gordon and his girlfriend, Karen Vendetti, then went to meet defendant, the plan was successfully executed and a search of Gordon's vehicle revealed a brown paper bag wedged between the driver's seat and the console that was shown by subsequent analysis to contain 122.49 grams (or 4.32 ounces) of a chunky white powdery substance containing cocaine. Defendant was charged with criminal possession of a controlled substance in the first degree.
Prior to trial, the People sought a ruling permitting Gordon and Vendetti to testify concerning their past experience with defendant as related to the transportation of cocaine into the City, which the People maintained would be necessary "to complete the narrative" because defendant's prior drug trafficking was so inextricably interwoven into the facts of the case. Following a People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59 hearing at which Gordon and Vendetti testified, County Court granted the application to the extent of permitting Gordon to testify concerning his desire to get away from his drug habit as a motivation for contacting the police and the prior occasions that he picked defendant up outside the City (without revealing the number of times). Vendetti was permitted to testify concerning the events of May 18, 1993 and the prior occasions when she accompanied Gordon to meet defendant outside the City and the fact that defendant would have cocaine on those occasions.
Following a jury trial, at which Gordon and Vendetti testified in accordance with County Court's ruling on the Ventimiglia application, defendant was convicted of the sole count of the indictment and was sentenced to an indeterminate prison term of 22 years to life. Defendant now appeals.
We affirm. Initially, we reject the contention that County Court erred in permitting Gordon and Vendetti to testify concerning defendant's prior drug trafficking. Although evidence of uncharged crimes must be excluded where it is offered solely to establish a defendant's criminal propensity (see, People v. Hudy, 73 N.Y.2d 40, 54-55, 538 N.Y.S.2d 197, 535 N.E.2d 250), such evidence is admissible where the prior uncharged offense bears on a material issue in the case and its probative value outweighs the potentially prejudicial effect (see, People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59; People v. Molineux, 168 N.Y. 264, 61 N.E. 286). We agree with County Court's conclusion that, absent the testimony at issue here, the jury would have been left to speculate as to why Gordon and Vendetti drove outside the City to meet defendant or why Gordon contacted the police and participated in the plan for a stop...
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