People v. Turner

• Decision Date: 29 December 1978
• Parties: The PEOPLE, etc., Respondent, v. Charles TURNER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 627

412 N.Y.S.2d 627

66 A.D.2d 904

The PEOPLE, etc., Respondent, v. Charles TURNER, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 29, 1978.

William E. Hellerstein, New York City (Katherine Hudson, New York City, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Jay M. Cohen, Brooklyn, of counsel), for respondent.

Before MARTUSCELLO, J. P., and TITONE, HAWKINS and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered July 22, 1977, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

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

The undercover police officer testified that he approached defendant on the street and told him that he had $46 and that he wanted five bags of heroin. Defendant told the officer to come with him to a social club at 2008 Fulton Street. Inside the social club defendant introduced the officer to Rudolph Dupree. Dupree gave defendant a small amount of cocaine to "snort". The officer and Dupree then went to another room. Defendant did not accompany them. Dupree then sold two bags of heroin to the officer for $20. The officer testified that he never paid defendant any money for drugs; nor had he seen any heroin in defendant's possession. However, police officers who were members of the undercover officer's back-up team, testified that they saw defendant drive a car registered to Rudolph Dupree's brother and that, subsequent to the heroin sale to the undercover officer, they saw the defendant speak to Rudolph Dupree. The court was of the opinion that the evidence adduced did not warrant a charge on the defense of agency. We find that the court should have charged the jury on the agency defense (see People v. Lam Lek Chong, 45 N.Y.2d 64, 407 N.Y.S.2d 674, 379 N.E.2d 200; People v. Roche, 45 N.Y.2d 78, 407 N.Y.S.2d 682, 379 N.E.2d 208; People v. Dowdy, App.Div., 406 N.Y.S.2d 1005; People v. Hool, 46 A.D.2d 912, 363 N.Y.S.2d 12).

The prosecutor should not have offered extensive evidence on the procedures involved in the manufacture of heroin or on the hierarchy in the drug trade. This testimony was discussed by the prosecutor during his summation. It was prejudicial, its probative value was slight and it deprived defendant of a fair trial (see People v. Cook, 42 N.Y.2d 204, 397 N.Y.S.2d 697, 366 N.E.2d 788; People v. Diaz, 54 A.D.2d 639, 387 N.Y.S.2d 578; People v. Maldonado, 50 A.D.2d 556, 376 N.Y.S.2d 512; People v. Rencher, 49 A.D.2d 609, 370 N.Y.S.2d 199).

TITONE, HAWKINS and O'CONNOR, JJ., concur.

MARTUSCELLO, J. P., concurs as to the reversal of the judgment but otherwise dissents and votes to dismiss the indictment, with the following memorandum:

The People failed to prove defendant's guilt beyond a reasonable doubt. The evidence did not show that defendant had entered into a conspiracy with Rudolph Dupree to sell heroin, or that the...