People v. Smith

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: CASEY
• Citation: People v. Smith, 628 N.Y.S.2d 190, 215 A.D.2d 940 (N.Y. App. Div. 1995)
• Decision Date: 25 May 1995
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyrone SMITH, Appellant.

Page 190

628 N.Y.S.2d 190

215 A.D.2d 940

The PEOPLE of the State of New York, Respondent, v. Tyrone SMITH, Appellant.

Supreme Court, Appellate Division Third Department.

May 25, 1995.

Robert M. O'Leary, Public Defender (William L. Brown, of counsel), Binghamton, for appellant.

Gerald F. Mollen, Dist. Atty. (Mary Anne Lehmann, of counsel), Binghamton, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and SPAIN, JJ.

CASEY, Justice.

Appeals from two judgments of the County Court of Broome County (Mathews, J.), rendered April 24, 1992 and September 2, 1992 upon verdicts convicting defendant of the crimes of criminal possession of a controlled substance in the third degree (four counts) and criminal possession of a weapon in the third degree.

After defendant sold or gave cocaine to two different police informants, the police obtained a warrant to search defendant's residence. The search produced an unloaded, operable handgun. Defendant was thereafter indicted on four counts of criminal sale of a controlled substance in the third degree and criminal possession of a weapon in the third degree. Defendant's motion for separate trials on the drug and weapon possession charges was granted and defendant was thereafter convicted of all charges.

Defendant contends that his motion to dismiss the indictment should have been granted on the basis of alleged errors in the Grand Jury proceedings. According to defendant, the prosecutor should have given limiting or curative instructions to the Grand Jury when one of the witnesses referred to uncharged crimes. We are of the view that the testimony was relevant to establish the connection between defendant and the witness, who was one of the police informants, and we see little likelihood of any undue prejudice (see, People v. Richardson, 193 A.D.2d 969, 971, 598 N.Y.S.2d 341, lv. denied 82 N.Y.2d 725, 602 N.Y.S.2d 822, 622 N.E.2d 323). Defendant contends that when he appeared before the Grand Jury, he was not given an opportunity to give his version of the events before being cross-examined (see, People v. Miller, 144 A.D.2d 94, 97, 537 N.Y.S.2d 318). It appears that defendant failed to make a timely challenge on this ground (see, CPL 190.50[5][c]. In any event, the Grand Jury minutes reveal that defendant was, in fact, given a meaningful opportunity to present his version of the events before he was cross-examined. As to defendant's remaining claim concerning the Grand Jury proceedings, evidence of defendant's prior conviction of attempted grand larceny was relevant to the gun possession charge (see, Penal Law § 265.02[1], and the prosecutor's mischaracterization of that...