People v. Smith

• Decision Date: 27 July 1995
• Citation: 630 N.Y.S.2d 528,217 A.D.2d 520
• Parties: The PEOPLE of the State of New York, Respondent, v. Tony SMITH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 528

630 N.Y.S.2d 528

217 A.D.2d 520

The PEOPLE of the State of New York, Respondent, v. Tony SMITH, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 27, 1995.

D.W. Power, for respondent.

M. Milner, for defendant-appellant.

Before SULLIVAN, J.P., and ROSENBERGER, ELLERIN, ROSS and WILLIAMS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered January 22, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him as a second felony offender to an indeterminate term of imprisonment of from 6 1/2 to 13 years, affirmed.

The evidence was legally sufficient to prove defendant's guilt of selling crack cocaine to an undercover officer. Responding to the officer's inquiry as to who "was working the peephole" in a certain building, defendant informed him that a new supply was being gathered and directed the officer to codefendant Mitchell, who was sitting at a table nearby. Mitchell, after ascertaining from the officer that he wanted five vials of crack, told defendant to get him five vials, which defendant retrieved from a milk carton under the table where Mitchell was sitting. Defendant handed the vials to Mitchell, who, in turn, handed them to the officer. This evidence, combined with defendant's knowledge of the peephole, established that defendant and Mitchell were acting as a team (People v. Fuzzell, 189 A.D.2d 686, 592 N.Y.S.2d 379).

The Sandoval hearing disclosed that defendant had six prior arrests resulting in a February 1981 conviction of unauthorized use of a vehicle, an August 1981 assault in the third degree conviction and an August 1982 conviction of criminal sale of a controlled substance in the second degree for which defendant was sentenced to five years to life. Defendant had been sentenced as a Youthful Offender on the two misdemeanor convictions. The court ruled that if defendant testified, the prosecutor could ask him whether he had been convicted of criminal sale in the second degree and, if so, to question him about the length of his sentence and the fact that he had been in continuous custody from 1983 to 1990. The court further ruled that the prosecutor could not refer to the underlying facts and circumstances of the drug conviction nor could the prosecutor delve into any of defendant's other convictions. In responding to counsel's argument that it would be prejudicial to allow the jury to hear that defendant had been convicted of a crime similar to the pending charge, the court noted the particular importance of defendant's criminal history for credibility purposes in a case such as this, which was based on the identification of one witness. The court reasoned that "if [the jury] did not know about [defendant's] prior criminal history involving the sale of drugs, then his word would have the credibility it might [not] otherwise deserve."

The trial court's Sandoval ruling properly weighed the potential for undue prejudice against the probative value of defendant's prior drug related conviction. (People v. Allen, 186 A.D.2d 379, 380, 588 N.Y.S.2d 276, lv. denied 81 N.Y.2d 836, 595 N.Y.S.2d 735, 611 N.E.2d 774.) On the basis of the court's statement that if the jury was unaware of defendant's prior criminal history involving the sale of drugs, defendant's testimony might be given a credibility it did not deserve, the dissent draws the unwarranted inference that the Sandoval ruling "was specifically designed to counter any denial by defendant that he had participated in a drug sale since he had a prior history as a drug seller." In our view, however, the court's statement indicates nothing more than a conclusion that the drug conviction bore directly on credibility. (See, People v. Lucas, 160 A.D.2d 330, 553 N.Y.S.2d 736, lv. denied 76 N.Y.2d 860, 560 N.Y.S.2d 1000, 561 N.E.2d 900.) We note that the court minimized its potential for prejudice by precluding inquiry into the underlying facts (People v. Scott, 174 A.D.2d 371, 571 N.Y.S.2d 451, lv. denied 78 N.Y.2d 974, 574 N.Y.S.2d 954, 580 N.E.2d 426). That the crime charged was similar to that underlying the prior conviction did not insulate defendant from impeachment based on such conviction (People v. Reid, 190 A.D.2d 575, 593 N.Y.S.2d 521, lv. denied 81 N.Y.2d 1078, 601 N.Y.S.2d 598, 619 N.E.2d 676). Nor did the fact that the prior conviction was nine years old (see, People v. Yeaden, 156 A.D.2d 208, 548 N.Y.S.2d 468, lv. denied 75 N.Y.2d 872, 553 N.Y.S.2d 304, 552 N.E.2d 883), especially since defendant was incarcerated for a considerable part of this period (People v. Cain, 167 A.D.2d 131, 133, 561 N.Y.S.2d 219, lv. denied 77 N.Y.2d 836, 567 N.Y.S.2d 205, 568 N.E.2d 654).

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