People v. Sarmiento

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN; All concur except CARRO and MILONAS, JJ. who dissent in a memorandum by CARRO; CARRO
• Citation: People v. Sarmiento, 565 N.Y.S.2d 1, 168 A.D.2d 328 (N.Y. App. Div. 1990)
• Decision Date: 18 December 1990
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan Javier SARMIENTO, Defendant-Appellant.

Page 1

565 N.Y.S.2d 1

168 A.D.2d 328

The PEOPLE of the State of New York, Respondent, v. Juan Javier SARMIENTO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 18, 1990.

Before SULLIVAN, J.P., and CARRO, MILONAS, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Robert Cohen, J.), rendered April 6, 1989, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1], and sentencing him as a second felony offender to a term of imprisonment of from 4 1/2 to 9 years, affirmed.

Defendant was arrested in a buy-and-bust operation subsequent to his sale of four vials of cocaine to an undercover police officer for pre-recorded buy money. The officer testified that he initialed, in pen, the top of the vials and placed them in an envelope, which was sealed and signed by him and then co-signed by a sergeant. At trial, the undercover officer testified that the vials, which were introduced into evidence, were in substantially the same condition as they were when placed in the envelope. A police chemist testified that she received the vials in a sealed envelope and that she broke the seal herself. This evidence provides a reasonable assurance of the identity of the cocaine and its unchanged condition (People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310; People v. Newman, 129 A.D.2d 742, 514 N.Y.S.2d 501). When the vials were introduced into evidence, they did not contain any initials. However, this discrepancy is an issue going merely to the weight of the evidence (People v. Newman, supra; People v. Ramos, 147 A.D.2d 718, 538 N.Y.S.2d 327).

The circumstances of People v. Ruiz, 162 A.D.2d 350, 556 N.Y.S.2d 910, upon which the dissent relies, are distinguishable. In that case, the testimony of the undercover officer who purchased the vials of cocaine was full of inconsistencies. His report of the buy and bust operation had been altered, he was unable to provide a coherent account of when and why the alteration was made, his description of the vials did not match those admitted into evidence and, finally, his signature did not appear on the security envelope in which the evidence was stored. We therefore held that the jury's verdict was against the weight of the evidence and vacated the conviction for criminal sale of a controlled substance.

In the case before us, by contrast, the only discrepancy in the evidence is that the undercover officer's initials did not appear on the vials when they were admitted into evidence. The jury was free to conclude that the initials, marked on the vials only in pen, were rubbed off in handling. Thus, the verdict cannot be said to be unsupported by the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672). A chain of custody was properly established.

The record does not reflect any discrepancy with respect to the presence of tape on the vials. Upon direct examination, the following colloquy took place:

Q Officer, are the vials in the same envelope that they were on the day that you signed and sealed?

A Yes.

Q Is there a slit on the side for analysis purposes?

A Yes.

Q And are they--

Are the vials now in an envelope in a sealed clear plastic bag?

A Yes.

Q Were they?

A Yes.

Q And the vials have tape on them; is that correct?

A Yes

Q Are the vials themselves, Officer, in substantially the same condition now as they were on February 9, 1988?

A Yes.

The jury was free to discount the testimony given by the lab technician. However, assuming the jury credited her testimony to the effect that she specifically recalled the subject vials out of the thousand or so similar vials she handled during the week, it is nevertheless entirely consistent with the undercover officer's testimony as reflected in the record.

Finally, the undercover officer's testimony regarding the description of the seller which he gave to the arresting officers by radio does not constitute bolstering in violation of (People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841; see, People v. Candelario, 156 A.D.2d 191, 548 N.Y.S.2d 448; cf., People v. Luciano, 64 A.D.2d 614, 406 N.Y.S.2d 528). This testimony, together with that of the arresting officers who received the description, provides a necessary explanation of the events which precipitated defendant's arrest (see, Matter of Robert S., 159 A.D.2d 358, 552 N.Y.S.2d 943, app. dsm'd, 76 N.Y.2d 770, 559 N.Y.S.2d 979, 559 N.E.2d 673).

All concur except CARRO and MILONAS, JJ. who dissent in a memorandum by CARRO, J. as follows:

CARRO, Justice (dissenting).

Because the People failed to demonstrate that the vials admitted into evidence at trial were, in fact, the same vials received by the undercover officer from defendant in the course of a buy and bust operation, the vials and controlled substance contained therein i.e. cocaine, were inadmissible. As a result, the conviction herein appealed from is predicated upon evidence insufficient to establish every element of the offense charged. Accordingly, because I would reverse the conviction and dismiss the charge, I dissent.

Before a defendant may be convicted of criminal sale of a controlled substance in the third degree, the People must adduce evidence sufficient to prove that the accused knowingly and unlawfully sold a substance containing one of the substances enumerated in PL § 220.39. In this case, defendant was charged with selling four vials of a narcotic drug, cocaine, to undercover officer Sheldon Dixon on February 9, 1988. Thus, in order for a valid conviction to be had, the People had to prove that what the defendant sold was, in fact, cocaine. PL § 220.39(1); Criminal Jury Instructions of New York Vol. 3 p. 1701.

At trial, Dixon testified that after he purchased the four vials from defendant, he conducted what is known in police parlance as a "sign and seal;" that is to say, he marked each one of the vials with his initials and placed them in an envelope, which was then sealed.

At trial, Dixon was able to identify the envelope in which he had placed the vials he purchased and initialed; however, he acknowledged that his markings were not on a single one of the vials the prosecutor sought to introduce into evidence. Neither did Dixon's testimony include any indication that even one of the vials bore any ink smudges. Regardless, in response to the prosecutor's specific question "officer, can you tell the jury exactly what you did with People's Exhibit Number Two for identification purposes on February 9th during the signing and sealing?" Dixon unequivocally testified "they were--I initialed them, and then, they were vouchered." Understandably, this conflicting testimony prompted vigorous objection from defense counsel, who correctly but unsuccessfully argued that there was no way to ascertain whether the vials presented in court were the same vials purchased by Dixon.

Monica Brooks, the chemist who analyzed the contents of the vials introduced at trial, testified that they tested positive for cocaine. Significantly, she recalled that the vials she tested were not initialed or marked in any way; had there been markings--of any sort--on the vials, she would have included that information in her report. Brooks claims she nevertheless remembered these vials, of the 1000 similar vials per week she analyzed, because they were "wrapped" in tape. This was in stark contrast to Dixon's testimony, which was bereft of any statement that he wrapped the vials in tape. Defense counsel renewed his objections to the introduction of the vials; however again his arguments were unavailing.

I would note that while my colleague, writing for an affirmance, would urge that there is no discrepancy regarding the tape, the section of testimony wherein Dixon acknowledges that the vials "have tape on them" regards not the sign and seal procedure he followed, but rather the appearance of the vials at the time of trial, after the chemist conducted her analysis. Indeed, this section of testimony, in context, is reflected in the record as follows:

Q. And is that [the vials] essentially in the same condition now as it was on February 9th?

A. No, it's not

Q. What's different about them now?

A. The top of it, I guess, during the lab analysis--

Mr. Berman: Objection, and I move to strike.

THE COURT: Yes.

Officer, try to answer the specific question that you are asked, sir, without guessing and just answer--

Put the question again, Mr. Gordon to Officer Dixon.

All right.

Q. Officer, are the vials in the same envelope that they were on the day that you sign and sealed?

A. Yes.

Q. Is there a slit on the site for analysis purposes?

A. Yes.

Q. And are they--

Are the vials now in an envelope in a sealed clear plastic bag? (emphasis added)

A. Yes.

Q. Were they?

A. Yes.

Q. And the vials have tape on them; is that correct?

A. Yes.

Q. Are the vials themselves, Officer, in substantially the same condition now as they were on February 9, 1988?

A. Yes.

Thus, it is clear the presence of the tape on the vials at trial was unrelated to Dixon's testimony regarding what he himself did on the date in question, when he conducted the sign and seal.

On summation, both sides presented vigorous argument concerning the identity of the vials, with the prosecutor inexplicably urging that "whether or not Police Officer Dixon placed his initials on the vials that he purchased has nothing whatsoever to do with this sale." The record reflects that during deliberations, the jury focused on the vials, and, it may be extrapolated from their notes and requests, the question of whether or not the vials introduced were the same vials recovered from defendant. Court Exhibit II was a request for the chemist's testimony regarding the condition of the vials at the time she received them. Court Exhibit III was a request for the vials themselves, along with a...