People v. Witherspoon

• Decision Date: 28 December 1989
• Citation: 549 N.Y.S.2d 6,156 A.D.2d 306
• Parties: The PEOPLE of the State of New York, Respondent, v. Solomon WITHERSPOON, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Terrence CARTER, a/k/a Terrance Carter, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 6

549 N.Y.S.2d 6

156 A.D.2d 306

The PEOPLE of the State of New York, Respondent, v. Solomon WITHERSPOON, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Terrence CARTER, a/k/a Terrance Carter, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 28, 1989.

R. Fabrizio, for respondent.

S.A. Feldman, New York City, E. Kleinhans, New York City, for defendant-appellant.

Before MURPHY, P.J., and SULLIVAN, ROSS, ASCH and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Rose L. Rubin, J.), rendered November 4, 1987, convicting defendant Witherspoon, after jury trial, of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree, and sentencing him as a predicate felon to a term of 2- 1/2 to 5 years on the sale conviction and a concurrent term of one year for the possession conviction, is unanimously affirmed.

Judgment of the Supreme Court, New York County (Rose L. Rubin, J.), rendered November 16, 1987, convicting defendant Carter, after jury trial, of criminal sale of a controlled substance in the fifth degree, and sentencing him as a predicate felon to a term of 2- 1/2 to 5 years, is unanimously affirmed.

These convictions arise out of the sale of narcotics by defendants Solomon Witherspoon and Terrence Carter to one Charles Humphrey, observed by police officers. Humphrey was immediately arrested after the sale in possession of a pink envelope with the controlled substance PCP. Thereafter, the officers observed defendants for the next two hours take part in additional narcotics transactions, before arresting them. Defendant Witherspoon had PCP in his possession at that time.

Prior to trial, the prosecutor sought permission to elicit testimony from one of the officers that similar drug exchanges of money for pink envelopes had taken place after the charged sale, in order to show that both defendants had acted in concert during the Humphrey sale. The court permitted this testimony and Officer Higgins testified that, for the two hours following the sale, he observed three to five similar transactions in which Carter handed individuals pink envelopes in exchange for money and in turn gave the money to Witherspoon. The evidence of the uncharged criminal conduct was relevant to show a pattern of activity by defendants and support the conclusion that they had acted in concert in the earlier Humphrey sale. This pattern of activity demonstrated the method of operation of defendants and helped to show that they had acted in concert in the charged sale and, therefore, testimony as to it was properly admitted (see, People v. Jackson, 39 N.Y.2d 64, 67, 68, 382 N.Y.S.2d 736, 346 N.E.2d 537).

Defendants contend that because Officer Higgins testified that he saw Carter hand Witherspoon the proceeds from the Humphrey sale, this was sufficient to establish the element of acting in concert, and evidence of other sales was, therefore, unnecessary and merely cumulative. However, at trial, the element of acting in concert was hotly disputed. Indeed, defense counsel, in both opening and summation, suggested that Officer Higgins could not have seen any exchange between Humphrey and Carter and the subsequent transfer of money to Witherspoon.

There was no necessity for the People to present only a bare modicum of evidence to establish a prima facie case, since the issue was in dispute, but they were entitled to present all admissible evidence available to them (see, People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808).

Further, defendants were...