People v. Maddox

• Decision Date: 31 December 1998
• Citation: 685 N.Y.S.2d 149,256 A.D.2d 1066
• Parties: 1998 N.Y. Slip Op. 11,980 PEOPLE of the State of New York, Respondent, v. Kale MADDOX, Appellant
• Court: New York Supreme Court — Appellate Division

Page 149

685 N.Y.S.2d 149

1998 N.Y. Slip Op. 11,980

PEOPLE of the State of New York, Respondent, v. Kale MADDOX, Appellant

Supreme Court, Appellate Division Fourth Department.

Dec. 31, 1998.

Edward J. Nowak by Kathleen McDonough, Rochester, for appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for respondent.

Present: PINE, J.P., HAYES, CALLAHAN, BALIO and BOEHM, JJ.

MEMORANDUM:

Supreme Court did not err in denying defendant's motion for a Wade hearing. The viewing of defendant by the undercover police officers 12 minutes after the drug transaction was merely confirmatory (see, People v. Wharton, 74 N.Y.2d 921, 922-923, 550 N.Y.S.2d 260, 549 N.E.2d 462; People v. Carter, 212 A.D.2d 722, 622 N.Y.S.2d 804, lv. denied 86 N.Y.2d 733, 631 N.Y.S.2d 613, 655 N.E.2d 710).

The court did not abuse its discretion in denying defendant's request to impose sanctions for the People's failure to preserve and make available to defendant the $10 bill used as "buy money" in the drug transaction. A photocopy of the $10 bill was furnished to defendant and admitted into evidence at trial; the bill itself had been recycled into the police department's "buy money" fund. The record does not demonstrate that the People acted in bad faith in failing to preserve the bill or that defendant was prejudiced thereby (see, People v. Brister, 239 A.D.2d 513, 658 N.Y.S.2d 362, lv. denied 90 N.Y.2d 938, 664 N.Y.S.2d 756, 687 N.E.2d 653; People v. Morrison, 235 A.D.2d 501, 653 N.Y.S.2d 357, lv. denied 89 N.Y.2d 1038, 659 N.Y.S.2d 869, 681 N.E.2d 1316; People v. Porter, 179 A.D.2d 1018, 1018-1019, 580 N.Y.S.2d 117, lv. denied 79 N.Y.2d 1006, 584 N.Y.S.2d 460, 594 N.E.2d 954; People v. Riviere, 173 A.D.2d 871, 571 N.Y.S.2d 75, lv. denied 79 N.Y.2d 831, 580 N.Y.S.2d 211, 588 N.E.2d 109), especially in the absence of some showing that the bill was exculpatory (see, People v. Porter, supra, at 1018-1019, 580 N.Y.S.2d 117).

There is no merit to the contention of defendant that the court erred in permitting the undercover police officers to testify regarding a prior uncharged drug crime involving a drug sale made immediately before the drug sale involved here. That testimony was properly admitted as evidence that defendant possessed cocaine at the time in question with the intent to sell (see, People v. Alvino, 71 N.Y.2d 233, 245-246, 525 N.Y.S.2d 7, 519 N.E.2d 808; People v. Moody, 229 A.D.2d 936, 645 N.Y.S.2d 375, lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 729, 677 N.E.2d 301). Further, the probative value of such evidence exceeded its potential for prejudice (see, People v. Alvino, supra, at 242, 525 N.Y.S.2d 7, 519 N.E.2d 808), and any prejudice to defendant was minimized by the court's limiting instruction regarding the prior sale (see, People v. Rodriguez, 224 A.D.2d 346, 638 N.Y.S.2d 620, lv. denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355; People v. Dais, 222 A.D.2d 1045, 635 N.Y.S.2d 859, lv. denied 91 N.Y.2d 890, 669 N.Y.S.2d 5, 691 N.E.2d 1031).

The court did not abuse its discretion in denying the motion of defendant for a mistrial based upon the prosecutor's comments during summation and the objections made by the prosecutor to defense counsel's summation. The conduct of the prosecutor was not so egregious or prejudicial as to deprive defendant of a fair trial (see generally, People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885; see also, People v. Bastow, 217 A.D.2d 930, 932, 630 N.Y.S.2d 432, lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776).

The court did not err in denying defendant's request for a missing witness charge with respect to a police officer who had participated in the arrest of defendant. Although defendant met his initial burden of demonstrating entitlement to the charge, the People established that the testimony of the officer would be only cumulative (see, People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583; People v. Nesmith, 231 A.D.2d 941, 648 N.Y.S.2d 370, lv. denied 89 N.Y.2d 1039, 659 N.Y.S.2d 869, 681 N.E.2d 1316).

Finally, defendant contends that the court abused its discretion in denying his request, made at the close of the People's case, that the indictment be dismissed as a sanction for the failure of the People to provide him with a piece of paper on which Police Officer Anderson made notes of the description of the seller in the drug buy. The officer made the notes while the description was being broadcast over the police radio by the undercover officers who had participated in the drug buy. Officer Anderson did...