People v. Ruiz

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN
• Citation: People v. Ruiz, 556 N.Y.S.2d 910, 162 A.D.2d 350 (N.Y. App. Div. 1990)
• Decision Date: 26 June 1990
• Parties: The PEOPLE of the State of New York, Respondent, v. Radames RUIZ, Defendant-Appellant.

Page 910

556 N.Y.S.2d 910

162 A.D.2d 350

The PEOPLE of the State of New York, Respondent, v. Radames RUIZ, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 26, 1990.

B. Manning, for respondent.

S. Gaynor, for defendant-appellant.

Before SULLIVAN, J.P., and ROSS, KASSAL, ELLERIN and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.) rendered November 21, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, respectively, to an indeterminate term of imprisonment of from one to three years and a conditional discharge, is unanimously modified, on the facts, to reverse defendant's conviction of criminal sale of a controlled substance in the third degree, to dismiss that count of the indictment, and to vacate the sentence imposed thereon, and otherwise affirmed.

In order to find defendant guilty of selling cocaine, the jury had to decide that the two vials introduced at trial, which were found upon chemical analysis to contain cocaine, were the same vials that the undercover officer purchased from defendant in the buy operation of April 12, 1988. The vials so purchased were described by the undercover officer as having blue tops in the voucher he prepared immediately upon his return to the precinct in the afternoon of the buy operation, in the police report he prepared that evening, and in testimony he gave to the Grand Jury six weeks later in May 1988. However, at the trial, conducted in October 1988 six months after the buy operation, the vials introduced in evidence had green tops, not blue. Asked on direct examination to "account" for this discrepancy, the undercover officer stated, "I made a mistake." Asked on cross examination when he became aware of this mistake, he replied, "Last week." Asked further on cross whether this was when he met with the Assistant District Attorney to prepare for the trial, he answered, "No. I picked up the mistake myself." On redirect, the prosecutor showed the undercover officer the police report he prepared, pointed out that word "blue" had been crossed out, and asked him to explain "the reason for that being crossed out", to which he replied, "Because it [referring to the word "blue"] was a mistake. To correct the mistake." However, asked by the prosecutor, "Do you recall when you corrected it?", he answered, "No, I don't." On recross, defendant's attorney, probing this failure of recollection, reminded the undercover officer of his testimony that he had first realized his mistake only "last week", and asked him whether he crossed out the word "blue" in his report "last week", to which he replied, "No, I didn't change it a week ago. If it was changed, it was changed in April [referring to the time frame of the buy operation]." Nonplussed, defense counsel interjected, "But before last week you didn't know there was a mistake, is that correct?", to which he replied, "That's correct." Pressed whether he could "say for sure when this report was changed", he answered, "Well, it wasn't changed last week." Asked simply, "Officer, do you remember crossing out the word...