People v. Tucker

• Decision Date: 09 July 1984
• Citation: 102 A.D.2d 535,477 N.Y.S.2d 386
• Parties: The PEOPLE, etc., Respondent, v. Lawrence TUCKER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 386

477 N.Y.S.2d 386

102 A.D.2d 535

The PEOPLE, etc., Respondent, v. Lawrence TUCKER, Appellant.

Supreme Court, Appellate Division Second Department.

July 9, 1984.

Linda S. Jamieson, White Plains, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Richard E. Weill and Gerald D. Reilly, Asst. Dist. Attys., White Plains, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, BRACKEN and WEINSTEIN, JJ.

BRACKEN, Justice.

In the within action, the defendant was tried on an indictment charging one count of criminal possession of a weapon in the third degree (Penal Law, § 265.02, subd. ), and at the conclusion of the trial, was convicted as charged. On appeal to this court, defendant contends that reversal is required upon three separate grounds. Before turning to our analysis of these contentions, we first consider the relevant portions of the trial testimony, which we must view in the light most favorable to the People (People v. Kennedy, 47 N.Y.2d 196, 203, 417 N.Y.S.2d 452, 391 N.E.2d 288).

Detective Sergeant Landers of the Yonkers Police Department testified that he was conducting a narcotics surveillance from a third floor window of an apartment building when he observed two cars pass him and park at the curb directly opposite his position. One of the cars was a green two-door Ford Pinto, and the other was a brown four-door Ford sedan; both bore Massachusetts license plates. Defendant, the driver and sole occupant of the Pinto, left his car and walked back to the sedan, in which Landers observed a driver and two passengers. Defendant engaged in a conversation with the driver and then returned to his car. He made a U-turn and drove the Pinto into the front of a gas station which directly faced Landers' window, and the sedan followed. Using binoculars, Landers observed pistols in the hands of both the driver and one of the passengers of the sedan. Turning to the Pinto, he observed defendant placing his hand on the sawed-off butt end of either a rifle or shotgun protruding between the seats. Both cars then drove away, and Landers reported what he had seen on his police radio.

Approximately two hours later, the two vehicles in question were located in White Plains. Detective Lanza of the White Plains Police Department observed both cars parked in front of an office building. He then observed defendant get out of the Pinto and walk into the building. Lanza left his police car and walked over to the Pinto. In the back, he observed a garment bag from which a sawed-off shotgun protruded. Lanza and his partner then placed the three occupants of the sedan under arrest and removed the garment bag containing the shotgun from the Pinto. When defendant walked out of the building, he was placed under arrest and searched and two shotgun shells were found in his jacket pocket. Defendant stated that he had nothing to do with either of the two cars or the other three persons. However, another shotgun shell was found on the floor of the sedan, and it was subsequently determined that the sedan was registered in defendant's name. The Pinto had been leased to a woman who had given defendant permission to use it.

Later that day, Detective Sergeant Landers arrived from Yonkers at White Plains police headquarters, where he identified the four individuals and two vehicles as those he had seen earlier that day. Landers also identified the shotgun and two weapons recovered from the sedan. The shotgun had an overall length of thirty and three-quarters inches.

Defendant first contends that evidence of criminal acts by others associated with him, i.e., possession of weapons by the occupants of the other car, was improperly received, because such evidence was irrelevant to the issues in the case and highly prejudicial, particularly in light of the fact that defendant was being tried on a weapon possession charge. We agree.

This is not, strictly speaking, a case in which the prosecution utilized evidence of other crimes committed by this defendant in order to prove the guilt of the crime charged (People v. Allweiss, 48 N.Y.2d 40, 421 N.Y.S.2d 341, 396 N.E.2d 735; People v. Molineux, 168 N.Y. 264, 61 N.E. 286); nor is it a case where evidence of uncharged crimes committed by a defendant was inextricably interwoven with evidence regarding the present charge (People v. Vails, 43 N.Y.2d 364, 401 N.Y.S.2d 479, 372 N.E.2d 320; cf. People v. Hyman, 78 A.D.2d 701, 432 N.Y.S.2d 510), nor where evidence of uncharged crimes was necessary to complete a witness' narrative or to establish the witness' opportunity to identify the defendant (People v. Gines, 36 N.Y.2d 932, 373 N.Y.S.2d 543, 335 N.E.2d 850). The evidence regarding the sedan, its occupants and the weapons seen therein essentially was offered as background to enable the jury to understand the actions of the police and to corroborate the accuracy of the observations of the sawed-off shotgun in defendant's car.

The introduction of limited background evidence is proper where such evidence is necessary to make the subject matter of a crime intelligible to the jury (People v. Stanard, 32 N.Y.2d 143, 146, 344 N.Y.S.2d 331, 297 N.E.2d 77; People v. Maldonado, 50 A.D.2d 556, 376 N.Y.S.2d 512); to describe the scene of the crime (People v. Maldonado, supra ); or, if otherwise relevant, to establish or explain some material fact (People v. Le Grand, 76 A.D.2d 706, 431 N.Y.S.2d 850). However, it is improper to admit background evidence where the crime charged is unambiguous and such evidence is without probative value (People v. Philpot, 50 A.D.2d 822, 376 N.Y.S.2d 187). This is such a case. The only questions before the jury were whether defendant possessed a sawed-off shotgun on the date in question, and whether that shotgun was capable of being concealed. As defendant concedes, it was proper to permit the police officers to testify regarding the movements of the sedan and the activities of its occupants, insofar as they related to the movements and activities of defendant. Such testimony was necessary to enable the jury to understand the sequence of events and the actions of the police. However, it was not...