People v. Sorenson

• Decision Date: 04 June 1979
• Citation: People v. Sorenson, 417 N.Y.S.2d 275, 70 A.D.2d 892 (N.Y. App. Div. 1979)
• Parties: The PEOPLE, etc., Respondent, v. William SORENSON and Donald Compitello, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 275

417 N.Y.S.2d 275

70 A.D.2d 892

The PEOPLE, etc., Respondent, v.William SORENSON and Donald Compitello, Appellants.

Supreme Court, Appellate Division, Second Department.

June 4, 1979.

Frank A. Lopez, New York City, for appellant Sorenson.

Henry J. Boitel, New York City(Lissa Griffin, New York City, of counsel), for appellant Compitello.

Eugene Gold, Dist. Atty., Brooklyn (Laurie Stein Hershey, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before MOLLEN, P. J., and DAMIANI, O'CONNOR and RABIN, JJ.

MEMORANDUM BY THE COURT.

Appeals by defendants from two judgments (one as to each of them) of the Supreme Court, Kings County both rendered June 9, 1976, convicting both of them of two counts each of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the first degree, and conspiracy in the first degree, upon a jury verdict, and imposing sentence.

Judgments reversed, on the law, and new trial ordered.

Defendants, acting in concert, allegedly sold more than two pounds of cocaine to an undercover detective on June 5 and July 9, 1974.Defendants were convicted, Inter alia, of criminal sale of a controlled substance in the first degree and conspiracy.

At a prior trial of defendants on these charges, defendant Compitello asserted the defense of entrapment and testified in his own behalf.That trial ended in a mistrial when the jury was unable to reach a verdict.At the instant trial, defendant Compitello abandoned his entrapment defense and did not testify.However, as part of their direct case, the People introduced in evidence portions of Compitello's testimony at the prior trial against both defendants.Defendant Sorenson's request for limiting instructions, to the effect that the testimony should only be considered against Compitello, was denied.Since Sorenson had the opportunity to cross-examine Compitello at the first trial, his constitutional right to confront his accusors was not infringed (seePeople v. Moll, 26 N.Y.2d 1, 307 N.Y.S.2d 876, 256 N.E.2d 185, cert. den.Sub nom. Stanbridge v. New York, 398 U.S. 911, 90 S.Ct. 1707, 26 L.Ed.2d 71).It was, therefore, not error to allow the introduction of this testimony at the second trial as against Sorenson (seeMatter of Barry M., 93 Misc.2d 882, 403 N.Y.S.2d 979;People v. Chavers, 82 Misc.2d 201, 368 N.Y.S.2d 950;Mason v. United States, 10 Cir., 408 F.2d 903, cert. den.400 U.S. 993, 91 S.Ct. 462, 27 L.Ed.2d 441;United States v. Brasco, 2 Cir.,516 F.2d 816, cert. den.423 U.S. 860, 96 S.Ct. 116, 46 L.Ed.2d 88).

A reversal is mandated, however, because of the introduction of highly prejudicial testimony, unnecessary to establish the crimes charged.

First, evidence of crimes not charged in the indictment was freely admitted on the theory that it was relevant to the background and development of the conspiracy.Such evidence may be admitted where the other crimes are "inextricably interwoven with the crime charged in the indictment"(seePeople v. Vails, 43 N.Y.2d 364, 368, 401 N.Y.S.2d 479, 482, 372 N.E.2d 320, 323, affg.56 A.D.2d 939, 393 N.Y.S.2d 55;People v. Willis, 52 A.D.2d 972, 383 N.Y.S.2d 101;People v. Mitchell, 40 A.D.2d 117, 338 N.Y.S.2d 313).Further, where, as here, a conspiracy is charged, evidence of prior drug sales is admissible to show the "background and development" of a conspiracy to sell drugs (seeUnited States v. Magnano, 2 Cir., 543 F.2d 431, 435, cert. den.429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536) and the existence and aim of the conspiracy charged (United States v. Moten, 2 Cir., 564 F.2d 620, cert. den.434 U.S. 959, 98 S.Ct. 489, 54 L.Ed.2d 318;United States v. Cohen, 2nd Cir., 489 F.2d 945).

However, People v. Condon, 26 N.Y.2d 139, 309 N.Y.S.2d 152, 252 N.E.2d 615, teaches that revealing irrelevant "details" of a similar crime could constitute reversible error, even if some evidence of the other crime would be admissible to prove the crime charged.In People v. Cook, 42 N.Y.2d 204, 208, 397 N.Y.S.2d 697, 699, 366 N.E.2d 1363, the Court of Appeals recently reiterated the standards of admissibility for crimes not charged in the indictment:

"It is axiomatic that evidence of uncharged crimes may be introduced only when the testimony is relevant and necessary to the prosecution's case (People v. Molineux, 168 N.Y. 264, 61 N.E. 286;seePeople v. Stanard, 32 N.Y.2d 143, 344 N.Y.S.2d 331, 297 N.E.2d 77).Moreover, in determining the admissibility of such evidence, a balance must be struck between the probative value of the testimony in connection with the crimes charged and the danger of undue prejudice to the defendant(People v. Schwartzman, 24 N.Y.2d 241, 247, 299 N.Y.S.2d 817, 822, 247 N.E.2d 642, 645).A defendant is entitled to have the jury determine his guilt or innocence solely upon evidence tending to prove the crime charged and uninfluenced by irrelevant and prejudicial facts and circumstances (People v. Tassiello, 300 N.Y. 425, 430-431, 91 N.E.2d 872, 874-875;seePeople v. Posner, 273 N.Y. 184, 190, 7 N.E.2d 93, 96)."

Evidence of the confidential informant's sale of jewelry to Sorenson in February, 1974 did establish the "background" of the conspiracy and demonstrated how the undercover detective and confidential informant gained Sorenson's confidence.

Similarly, evidence that a $5,000 loan which the undercover detective made to Sorenson was a "down payment" for heroin was admissible.Negotiations for...