People v. Steward, No. 2005-08106

CourtNew York Supreme Court Appellate Division
Citation2008 NY Slip Op 7021,54 A.D.3d 880,864 N.Y.S.2d 488
Decision Date16 September 2008
Docket NumberNo. 2005-08106
54 A.D.3d 880
864 N.Y.S.2d 488
2008 NY Slip Op 7021
No. 2005-08106
Appellate Division of the Supreme Court of the State of New York, Second Department.
September 16, 2008.

Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered November 10, 2005, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The defendant was convicted of selling crack cocaine to a confidential informant while he was under police surveillance. The confidential informant did not testify at the trial and an audiotape of the transaction was inaudible. The People's evidence consisted of the testimony of the detectives who had the confidential informant under surveillance and the confidential informant's grand jury testimony, which was admitted in evidence after a Sirois hearing (see Matter of Holtzman v Hellenbrand, 92 AD2d 405 [1983]). The defendant testified at the trial and denied the allegations against him.

The trial court ordered the Sirois hearing on July 21, 2005 after

54 A.D.3d 881

the prosecutor noted that the confidential informant told him the day before that he would not testify because he had been approached by a young black male on a bicycle who told him "Do not testify tomorrow. We know where your family lives," and his brother, who resembles him, was approached by a man who threatened to break his nose. The prosecutor further noted that the records of the defendant's telephone calls from jail indicate that the defendant made no telephone calls from July 10 through July 18, 2005; however, on July 19, the day the defendant learned the identity of the confidential informant and the day before the informant was threatened, "there are six phone calls that he makes to three different numbers." The prosecutor stated that two of the telephone calls were to "cell phones" and "we have names on others." Defense counsel acknowledged that the defendant had called the mother of his two children.

At the Sirois hearing, one of the detectives involved in the case testified that the confidential informant left a telephone message on his answering machine describing the threat by the young man on the bicycle. The detective further...

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14 cases
  • People v. Turnquest
    • United States
    • United States State Supreme Court (New York)
    • January 25, 2012
    ...bear a “heavy burden of proof” in demonstrating that defendant's misconduct caused the witness's unavailability ( People v. Steward, 54 A.D.3d 880, 882, 864 N.Y.S.2d 488 [2d Dept. 2008] ), “given the inherently surreptitious nature of witness tampering” ( Geraci at 369, 625 N.Y.S.2d 469, 64......
  • People v. Mullings
    • United States
    • New York Supreme Court Appellate Division
    • April 12, 2011
    ...with the testimony of the complaining witness ( People v. Jackson, 40 A.D.2d 1006, 1007, 338 N.Y.S.2d 760; see People v. Steward, 54 A.D.3d 880, 882, 864 N.Y.S.2d 488; People v. Moore, 193 A.D.2d 627, 628, 597 N.Y.S.2d 444). [83 A.D.3d 872] The police report was admissible “for proof that t......
  • People v. Crawford,
    • United States
    • New York Supreme Court Appellate Division
    • May 8, 2013
    ...897 N.Y.S.2d 674, 924 N.E.2d 782, quoting People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 161, 324 N.E.2d 544;see People v. Smith, 54 A.D.3d at 880, 863 N.Y.S.2d 818). “Where, however, the record raises a legitimate question as to the voluntariness of the plea, an evidentiary hearing is......
  • People v. Sabirov, 2019–11381
    • United States
    • New York Supreme Court Appellate Division
    • June 17, 2020
    ...the Police Department (see CPLR 4518[a] ; CPL 60.10 ; People v. Mullings, 83 A.D.3d 871, 871–872, 921 N.Y.S.2d 152 ; People v. Steward, 54 A.D.3d 880, 882, 864 N.Y.S.2d 488 ). The DAT form should not have been excluded at trial, and it is evidence that, notwithstanding the arresting officer......
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