People v. Negron
| Decision Date | 16 June 1998 |
| Parties | , 699 N.E.2d 32, 1998 N.Y. Slip Op. 5956 The PEOPLE of the State of New York, Respondent, v. Juan NEGRON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Defendant appeals, leave having been granted by a Judge of this Court, from an order of the Appellate Division (239 A.D.2d 244, 657 N.Y.S.2d 183) which affirmed a judgment of Supreme Court convicting defendant, after a jury trial, of third degree criminal possession of a controlled substance (see, Penal Law § 220.16[1] ) and sentencing him as a second felony offender to an indeterminate prison term of 4 1/2 to 9 years. At issue is whether, pursuant to CPL 300.50, the trial court properly refused to submit seventh degree criminal possession of a controlled substance to the jury as a lesser included offense of criminal possession of a controlled substance in the third degree. We agree with the Appellate Division that the denial of the charge-down request was not error.
At trial, evidence of defendant's possession with intent to sell was introduced by the prosecution through the testimony of a community beat police officer who, from his position on the second floor of a nearby library, observed defendant engage in two separate narcotics-related transactions from the stoop of an apartment building at 166 East 109th Street in Manhattan. According to the officer, defendant was first approached by a tall male carrying a small baby in a shoulder harness. The two men conversed for a few seconds, after which the officer saw defendant "go to the front door of [the apartment building], open the door, reach up to the top of the door frame, and come down with a white object." The officer testified that he watched defendant "untie the object * * * I believe there was a bundle--and give glassine envelopes to the male." When questioned about the details of this interaction, the officer stated:
"Basically, there was a hand motion, [defendant] gave him the glassines-- before [defendant] handed the glassines, the [other] male gave [defendant] the money, and then the [other] male just walked off, and [defendant] put the [remaining] glassines in his pocket" (emphasis supplied).
The officer's description of the incident also included his specific recollection that after defendant untied the bundle, he gave the glassines to the man with the baby
A second transaction, similar to the first, allegedly occurred three to five minutes later and involved defendant and another male in his late 40's or early 50's. With respect to this exchange, the officer testified that following a brief conversation, defendant reached into his pants pocket, came out with a bundle, untied it and handed the other male (emphasis supplied). The officer also averred that, after the purchaser left the front of the building, he observed defendant retie the bundle and place it back inside the top of the front door frame. The police officer then left his observation post and headed to the subject location, where defendant was stopped, frisked and placed under arrest. Four glassines containing heroin, tied in a bundle by a rubber band, were recovered from the top of the door frame, and a later search of defendant at the precinct recovered $74 in United States currency.
During cross-examination of the observing officer, defendant attempted to discredit his testimony by highlighting several claimed discrepancies and inconsistent statements. Specifically, with respect to the first transaction, the defense pointed out that although the officer stated on direct that he witnessed more than one glassine being exchanged, in his Grand Jury testimony he had only mentioned the transfer of a single envelope. The officer also conceded on cross that defendant used a "closed hand" to make some of the transfers, and that earlier, on direct, his testimony regarding the number of glassines actually sold was based on the "number of hand motions [he] saw," rather than any specific number of envelopes observable in defendant's hand. Finally, the observing officer acknowledged during cross-examination that neither of the alleged purchasers had been apprehended nor were any of the drugs, allegedly sold by defendant, recovered.
At the jury instruction conference, defendant requested the trial court to submit to the jury criminal possession of a controlled substance in the seventh degree (simple possession) as a lesser included offense to the indictment count of third degree criminal possession (possession with intent to sell). In support of this request, defendant argued that the observing officer's testimony was not so integrated as to prohibit the jury from separating the officer's account of defendant's possession from the testimony relating to the alleged sales. By urging rejection of one portion of the officer's testimony, yet accepting so much of another portion as would have supported only a finding of guilt on the lesser charge, defendant asserted that a reasonable view of the evidence existed to allow a jury finding that he was guilty of merely possessing the four glassines of heroin without the intent to sell.
Supreme Court denied defendant's request to charge the jury on the lesser included offense, finding no reasonable view of the evidence to support submission of the lesser charge. The Appellate Division agreed and, relying on our decision in People v. Scarborough, 49 N.Y.2d 364, 426 N.Y.S.2d 224, 402 N.E.2d 1127, concluded that "[t]he observing officer's testimony was integrated and there was no rational basis to reject only that portion which described conduct by defendant unmistakably evincing drug sales" (239 A.D.2d 244, 657 N.Y.S.2d 183, supra ).
As set forth in subdivision (1) of CPL 300.50, the court, in addition to submitting the greatest offense which it is required to submit, may, in its discretion
"submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater" (CPL 300.50 [emphasis supplied] ).
Under our prior case law, where proof of guilt of the greater and lesser offenses is found essentially in the testimony of one witness, a charge-down to the lesser offense is appropriate where it would be reasonable for the jury to reject a portion or segment of the witness' testimony establishing the greater offense, while crediting that portion of the testimony establishing the lesser crime (see, People v. Scarborough, ...
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