People v. Mullen

• Citation: 152 A.D.2d 260,549 N.Y.S.2d 520
• Parties: The PEOPLE of the State of New York, Respondent, v. James C. MULLEN, Appellant.
• Decision Date: 14 December 1989
• Court: New York Supreme Court — Appellate Division

Page 520

549 N.Y.S.2d 520

152 A.D.2d 260

The PEOPLE of the State of New York, Respondent, v. James C. MULLEN, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 14, 1989.

Lewis B. Oliver, Jr., Albany, for appellant.

Sol Greenberg, Dist. Atty. (Paul A. Clyne, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, LEVINE and MERCURE, JJ.

LEVINE, Justice.

The charge defendant stands convicted of was the sale of a quantity of cocaine to Richard Frankhouser on January 7, 1979. It was the result of a joint investigation by local, State and Federal law enforcement agencies which included both physical and electronic surveillance of defendant. An eavesdropping warrant authorizing a wiretap of defendant's home telephone was granted in December 1978.

The principal evidence against defendant consisted of several taped telephone conversations between defendant and Frankhouser from December 31, 1978 through January 7, 1979, police observations of a meeting between defendant and Frankhouser on January 7, and the testimony of Frankhouser. During the monitored telephone conversations prior to January 7, 1979, defendant was recorded telling Frankhouser that he was going to obtain quantities of cocaine, methamphetamine and marihuana for their use at social gatherings that New Year's Eve and the evening of January 6. In a January 7, 1979 conversation at about 2:00 P.M., Frankhouser apologized for not attending the party the previous night, to which defendant replied, "[t]hat's all right. I saved you a little cocoa." In a subsequent conversation that evening Frankhouser asked to buy some of the cocaine left after the previous night's party and also some methamphetamine, and defendant responded by offering to give Frankhouser the drugs, whereupon they arranged for Frankhouser to pick the drugs up at defendant's home in 15 to 20 minutes. Approximately 15 minutes later, the officer conducting physical surveillance of defendant's apartment observed Frankhouser arrive and defendant hand a small package to him. Frankhouser testified that he had known defendant for several months prior to the January 7, 1979 transaction and during that period purchased cocaine and "crystal" (methamphetamine) from him. He confirmed the accuracy of the monitored conversations with defendant on January 7 and that his visit to defendant that evening was for the purpose of and resulted in his obtaining the drugs, cocaine or "speed" (methamphetamine) or both. ¹ Frankhouser further testified that he had been a cocaine user for some 6 to 8 months before January 7, 1979, that he was familiar with the sensation experienced in snorting that drug, and that the sensation he experienced in using the substance defendant supplied him on January 7 was consistent with what he had experienced in using cocaine in the past.

Among the many points for reversal advanced on appeal by defendant is that the evidence adduced by the prosecution was insufficient, as a matter of law, to sustain the conviction. This question is in turn largely dependent on two evidentiary objections defendant makes, namely, (1) the admissibility of the previously described taped telephone conversations between defendant and Frankhouser concerning drugs to be furnished by defendant but unrelated to the January 7, 1979 sale alleged in the indictment, and (2) the admissibility and probative value of Frankhouser's testimony identifying the substance he obtained from defendant and ingested on January 7 to establish that the substance was actually cocaine. We find neither of these objections persuasive.

While it is true that the conversations concerning other drug dealings of defendant were in the nature of proof of uncharged crimes or bad acts having some tendency to show defendant's criminal propensity, we are of the view that the evidence was properly introduced as a Molineux exception to inadmissibility (see, People v. Molineux, 168 N.Y. 264, 61 N.E. 286). Notably in support of this conclusion, the defense strategy, as shown in defendant's opening statement and cross-examination of the People's witnesses, was that defendant never intended to sell or offer to sell cocaine to Frankhouser and that the substance he gave Frankhouser on January 7, 1979 was not cocaine or indeed any controlled substance. The tapes establishing defendant's contemporaneous dealing in cocaine and prior promises to supply Frankhouser with it were certainly probative, not merely of defendant's propensity to generally deal in cocaine, but of his intent to sell cocaine and not some harmless substance to Frankhouser on January 7. The tapes were also probative of his ability to carry out his January 7 offer to give Frankhouser cocaine. Moreover, given the theory of the defense and the fact that the substance defendant supplied Frankhouser was never available to police for testing and introduction at the trial, this is not a case where defendant's intent, or ability to carry out that intent, was readily inferable from the commission of the act itself, i.e., the admitted delivery by defendant of some substance to Frankhouser on January 7, 1979 (cf., People v. Crandall, 67 N.Y.2d 111, 500 N.Y.S.2d 635 491 N.E.2d 1092). Rather, the wiretap evidence of defendant's prior drug-related acts, close in time to the offense charged, was virtually necessary to establish contested elements of the crime for which he was indicted and, thus, its probative value clearly outweighed any potential prejudice (see, People v. Alvino, 71 N.Y.2d 233, 242-243, 245-246, 525 N.Y.S.2d 7, 519 N.E.2d 808). County Court properly instructed the jury on how this evidence was to be considered.

Nor was there any error in permitting Frankhouser's testimony tending to establish that the substance defendant gave him was actually cocaine. Essentially, Frankhouser characterized himself as an habitual user of cocaine for some 6 to 8 months prior to January 7, 1979 and described his sensations from snorting the material defendant gave him as being the same as he experienced when using cocaine previously. We think that People v. Kenny, 30 N.Y.2d 154, 331 N.Y.S.2d 392, 282 N.E.2d 295, heavily relied upon by defendant, does not dictate either rejection of Frankhouser's testimony or discounting its probative value in establishing the crime charged. The regrettable pervasiveness of societal cocaine abuse that has evolved since Kenny was decided, the clearly greater familiarity of Frankhouser with the subject drug here than that of the witness in Kenny and the additional evidence of defendant's damaging admissions on the tapes distinguish Kenny as authority against both admissibility and the value of Frankhouser's testimony to prove that the substance was cocaine. Our conclusion is amply supported by recent Federal decisions nationwide (see, United States v. Schrock, 855 F.2d 327, 334 [6th Cir.]; United States v. Osgood, 794 F.2d 1087, 1095 [5th Cir.], cert. denied 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596; United States v. Murray, 753 F.2d 612, 615 [7th Cir.]; United States v. Harrell, 737 F.2d 971, 978 [11th Cir.], cert. denied 469 U.S. 1164, 105 S.Ct. 923, 83 L.Ed.2d 935, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 781; United States v. Scott, 725 F.2d 43, 44-46 [4th Cir.]. Cumulatively, the evidence from the tapes, Frankhouser's testimony and the police surveillance was sufficient to establish defendant's guilt beyond a reasonable doubt.

Nor do we find any error in County Court's instructions to the jury on the elements of criminal sale of a controlled substance. The court correctly charged that defendant's guilt could be predicated upon an offer or agreement to sell cocaine, even if an actual delivery of cocaine did not occur (Penal Law § 220.00[1]; People v. Jones, 63 A.D.2d 582, 583, 404 N.Y.S.2d 622). Contrary to defendant's contention, County Court adequately charged specific intent in conjunction with defining sale to include an offer or agreement to sell when it further charged that the jury must also find that defendant's agreement to sell "was made in good faith * * * and with the intent at the time * * * to give Frankhouser cocaine " (emphasis supplied) (see, People v. Pierce, 112 A.D.2d 527, 529, 490 N.Y.S.2d 932; People v. Atkinson, 133 Misc.2d 78, 79, 506 N.Y.S.2d 539).

We similarly find without merit and unneedful of extended discussion the claims that County Court committed error in conducting the hearing under People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 to interrogate the two confidential informants who furnished information in support of the eavesdropping warrant application, and that County Court's findings of the informants' existence, reliability and bases of knowledge were insufficient (see, People v. Cobb, 98 A.D.2d 906, 470 N.Y.S.2d 930, cert. denied 469 U.S. 1164, 105 S.Ct. 923, 83 L.Ed.2d 935). Likewise, County Court properly denied defendant's motion to compel the prosecution to produce the female companion of Frankhouser when he drove to defendant's apartment on January 7, 1979. Defendant made no showing that she was a confidential informant of the police or that she was under the prosecution's control (see, People v. Jenkins, 41 N.Y.2d 307, 309, 392 N.Y.S.2d 587, 360 N.E.2d 1288; People v. Goggins, 34 N.Y.2d 163, 169, 356 N.Y.S.2d 571, 313 N.E.2d 41, cert. denied 419 U.S. 1012 95 S.Ct. 332, 42 L.Ed.2d 286). We also find no basis to conclude that County Court abused its discretion in denying defendant's motion to recuse.

More serious are defendant's contentions that errors were committed in denying, without a hearing, defendant's motions to preclude and to suppress the wiretap evidence introduced in this case and in similarly denying defendant's request for a suppression hearing concerning incriminatory statements defendant made to a Federal Drug Enforcement Administration (hereinafter DEA) agent. As to the wiretaps, we agree with County Court's determination that...