People v. Saddy

• Decision Date: 31 December 1981
• Citation: 445 N.Y.S.2d 601,84 A.D.2d 175
• Parties: The PEOPLE, etc., Respondent, v. Edward SADDY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 601

445 N.Y.S.2d 601

84 A.D.2d 175

The PEOPLE, etc., Respondent, v. Edward SADDY, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 31, 1981.

Peter Branti, Jr., New City, for appellant and pro se.

Kenneth Gribetz, Dist. Atty., New City (John S. Edwards, New City, of counsel), for respondent.

Before HOPKINS, J. P., and MANGANO, RABIN and COHALAN, JJ.

RABIN, Justice.

This is an appeal by the defendant from a judgment convicting him of criminal sale of a controlled substance in the third degree, and criminal sale of a controlled substance in the fifth degree.

The defendant was indicted for criminal sale of a controlled substance in the third and fifth degrees, and criminal possession of a controlled substance in the third and fifth degrees. The charges arose out of two transactions--one on November 17, 1979, the other on November 21, 1979--in which the defendant allegedly sold a quantity of phenmetrazine hydrochloride, a stimulant, to undercover investigator Cole-Hatchard. The undisputed proof at trial established that Cole-Hatchard, then an investigator for the Rockland County Narcotics Task Force, and the defendant had met by chance on October 15, 1979. The defendant had been hitchhiking to Rockland County Community College, and Cole-Hatchard offered him a ride. During the initial encounter, the subject of drugs was broached, and Cole-Hatchard manifested an interest in purchasing some drugs, particularly cocaine.

On October 19, 1979 Cole-Hatchard telephoned the defendant three times in an attempt to obtain drugs. When the defendant met Cole-Hatchard later that day, the defendant telephoned a friend who, he thought, might have "speed". The friend was not home, however, and no sale of drugs was consummated. Furthermore, despite numerous telephone calls by Cole-Hatchard in the ensuing weeks--eight or nine telephone calls according to Cole-Hatchard, even more in the defendant's estimation--no purchase was arranged. Then, on November 16, 1979 Cole-Hatchard happened to meet defendant at a bar called the "Barn". There, defendant told him he had some Preludin which was selling for $2.50 per pill. Though Cole-Hatchard expressed an interest in purchasing the drug, no transaction was consummated at that time, for defendant did not have the drug with him. The following day (November 17, 1979) Cole-Hatchard called defendant and asked whether he had either cocaine or "speed" for sale. Defendant responded that he had four hits of Preludin which were selling for $2.50 per hit. At a meeting later that day, four pills were exchanged for $10.

On November 19, 1979 Cole-Hatchard telephoned defendant and asked if a new supply of "speed" had been received. Defendant responded in the negative. On November 21, 1979 Cole-Hatchard again telephoned defendant and asked if the new supply of "speed" had been received. Defendant answered that it had and that he had about 30 hits which were selling for $2.50 each. A meeting was then arranged for later that day. At the meeting 29 pills were exchanged for $75. The pills were later determined, by laboratory analysis, to be phenmetrazine hydrochloride, a stimulant. Defendant was arrested on February 25, 1980 after further attempts by Cole-Hatchard to purchase drugs were unsuccessful.

The testimony of Cole-Hatchard, the principal prosecution witness, and the defendant differed mainly with regard to the details of the conversations between the two men. According to Cole-Hatchard, the defendant had stated, at their first encounter, that he "occasionally" dealt in cocaine and "speed". The defendant denied ever making the statement. Cole-Hatchard also stated that the defendant always told him to "keep in touch" so as to arrange a drug sale at some future time. The defendant, who sought to establish a defense of agency, contended that Cole-Hatchard had prodded him, in every conversation, to obtain drugs for him. He made no profit from the sale and became involved in the drug transaction solely to oblige Cole-Hatchard. He also claimed to have told Cole-Hatchard that the Preludin had been obtained from a friend.

At trial it was revealed, for the first time, that the October 19th telephone conversations, as well as other telephone conversations which took place prior to the sales, were recorded. The tapes of the October 19th conversations were admitted into evidence. However, the remaining tapes, which, according to prosecution witnesses, contained no proof of drug sales, had been erased. The erasure of the tapes was authorized by Investigator Comparetto who was charged with the responsibility of vouching, logging, and erasing of tape recordings. Comparetto, who had listened to the tapes, testified that it was "unfeasible" to voucher each tape, and that the Task Force budget "wouldn't allow it".

Defense counsel argued that the conduct of the police, in failing to preserve the tapes, amounted to a violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The trial court, however, declined to impose any sanction on the prosecution for its failure to produce the tapes for trial.

At the conclusion of the trial testimony, the charge of criminal possession of a controlled substance in the third degree was reduced, on the People's motion, to the lesser included offense of criminal possession of a controlled substance in the fourth degree. The jury found the defendant guilty of all charges submitted. The defendant was sentenced, as a second felony offender, to an indeterminate prison term of 4 1/2 to 9 years on the count of criminal sale of a controlled substance in the third degree and a concurrent term of 2 to 4 years on the count of criminal sale of a controlled substance in the fifth degree. The possession counts were dismissed as lesser included offenses.

The principal issue raised by the instant appeal is whether the conduct of the police, in erasing the tapes, warrants reversal of the defendant's convictions. The defendant contends that the tapes which were destroyed were exculpatory, and discoverable under Brady v....