People v. Young

• Decision Date: 02 April 1998
• Citation: 670 N.Y.S.2d 940,249 A.D.2d 576
• Parties: , 1998 N.Y. Slip Op. 3025 The PEOPLE of the State of New York, Respondent, v. Charles YOUNG, Also Known as Supreme, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 940

670 N.Y.S.2d 940

249 A.D.2d 576, 1998 N.Y. Slip Op. 3025

The PEOPLE of the State of New York, Respondent, v. Charles YOUNG, Also Known as Supreme, Appellant.

Supreme Court, Appellate Division Third Department.

April 2, 1998.

Kathryn S. Dell, Rensselaer, for appellant.

Sol Greenberg, District Attorney (Christopher D. Horn, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, PETERS and CARPINELLO, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered December 12, 1994, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, criminal use of drug paraphernalia in the second degree and criminal nuisance in the second degree.

At issue on this appeal are County Court's rulings on defendant's pretrial suppression and Sandoval motions, as well as its denial of a defense request for the submission of a lesser charge to the jury under the first count of the indictment. Defendant also alleges error in the court's failure to give an interested witness charge relative to testimony by police officers.

On January 25, 1994, at approximately 10:20 P.M., Albany Police narcotics officers engineered a "controlled buy" of crack cocaine at an apartment building at 397 State Street in the City of Albany utilizing a confidential informant, John Fendrick. Fendrick, a crack cocaine addict, had previously lived in the apartment building and was acquainted with several of its occupants, including defendant. In preparation for the transaction, Fendrick was strip-searched to ensure that he possessed no contraband, fitted with a "body wire," and given $100 with which to make two $50 purchases of crack cocaine inside the apartment building. Police watched Fendrick enter the apartment building, and then monitored his conversations and activities via the listening device. ¹ When Fendrick emerged from the building he produced a quantity of crack cocaine which he had purchased inside, and returned $50 to police, as the second planned transaction was not consummated. He also elaborated to police as to what had occurred inside the building, and on the basis thereof, as well as the tape generated from the body wire, search warrants for two apartments, 7B and 7C, were obtained and executed several hours thereafter.

Defendant was charged in a four-count indictment with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal use of drug paraphernalia in the second degree and criminal nuisance in the first degree. The first two counts stemmed from the Fendrick transaction and the last two counts arose out of the execution of the search warrant. Defendant was convicted of the first count and acquitted of the second count. However, with respect to count two, the jury instead convicted him of the lesser included offense of criminal possession of a controlled substance in the seventh degree. Defendant was also convicted as charged of the third and fourth counts. County Court sentenced defendant as a second felony offender to a prison term of 12 1/2 to 25 years.

From the varying accounts in the record, a somewhat murky scenario emerges as to what precisely occurred when Fendrick purchased the cocaine. Initially, it is to be noted that the tape contained a statement from Fendrick to the effect that he was going to the location to purchase drugs from an individual known as "Black". It is acknowledged that at no time did Fendrick indicate he was going to purchase drugs from defendant. He testified on direct examination that he proceeded to apartment 7B, knocked on the door and when defendant answered, Fendrick stated that he wanted to purchase $50 worth of crack cocaine and handed defendant $50. Fendrick stated that defendant knocked on the wall between apartments 7B and 7C, and then left the apartment, saying "I'll get it", returning shortly with another male called "Black", who had the cocaine. According to Fendrick, Black asked defendant who the cocaine was for, and defendant said "give him [Fendrick] the stuff". On cross-examination, however, Fendrick stated that when defendant returned to 7B with Black, defendant had the cocaine, but then handed it to Black, who then asked defendant who it was for and defendant indicated it should be given to Fendrick. The tape of the transaction did not contain defendant's voice subsequent to his leaving the apartment after knocking on the wall.

Defendant testified that Fendrick came to apartment 7B and asked for a "fifty," and that he (defendant) knocked on the wall to summon Black, and then left the apartment. He testified that Fendrick gave him no money and that he was not present when the drugs were given to Fendrick. Instead, he said, he was outside in the hall, having briefly gone downstairs to an apartment on the sixth floor looking for another individual. Other than summoning Black, defendant denies participating in the sale.

Defendant complains that County Court erred in failing to give an interested witness charge relative to the testimony of police officers since it charged the jury that defendant could be considered an interested witness. This issue is not preserved for appellate review inasmuch as defendant requested no such charge (People v. Huynh, 215 A.D.2d 168, 626 N.Y.S.2d 159; People v. Drake, 204 A.D.2d 478, 611 N.Y.S.2d 904, lv. denied 84 N.Y.2d 867, 618 N.Y.S.2d 13, 642 N.E.2d 332). Even were we to consider this claim on its merits, we do not view the court's charge in its entirety as unbalanced.

Nor did County Court err in refusing to submit the charge of criminal possession of a controlled substance in the seventh degree as a lesser-included offense of criminal sale of a controlled substance in the third degree. While the court grounded its refusal to so charge on its finding that no reasonable view of the evidence supported the conclusion that defendant possessed, but did not sell the cocaine, the request was properly denied because left unsatisfied here was the first component of the required two-pronged test for submission as a lesser included offense, which requires that it be impossible to commit the higher offense without concomitantly committing the lesser one (see, People v. Van Norstrand, 85 N.Y.2d 131, 623 N.Y.S.2d 767, 647 N.E.2d 1275; People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376; People v. Pruitt, 190 A.D.2d 692, 593 N.Y.S.2d 274, lv. denied81 N.Y.2d 975, 598 N.Y.S.2d 776, 615 N.E.2d 233, cert. denied 510 U.S. 880, 114 S.Ct. 223, 126 L.Ed.2d 178; People v. Frazier, 156 A.D.2d 583, 549 N.Y.S.2d 92, lv. denied 75 N.Y.2d 868, 553 N.Y.S.2d 300, 552 N.E.2d 879).

We also decline to disturb the County Court's ruling on the motion to suppress evidence garnered as a result of the search warrant issued herein. The warrant application was based upon an ongoing police investigation of the premises, as well as upon the transaction that had just been effected by Fendrick, as monitored and corroborated by police. While it is conceded that Fendrick's reliability as an informant had not been otherwise established prior to his participation in the purchase from apartment 7B, we find that there existed sufficient basis for the issuance of the warrant. The facts of this case are distinguishable from People v. Martinez, 80 N.Y.2d 549, 592 N.Y.S.2d 628, 607 N.E.2d 775, in that the informant's purchase of narcotics in that case was not monitored by police.

With respect to defendant's final point on appeal, the Sandoval issue, we take a much less benign view of County Court's ruling and conclude, for the reasons which follow, that reversal and a new trial are required.

At the time of his trial in 1994, defendant was a 44-year-old crack cocaine addict, having used the drug daily for at least 12 years. His criminal record began in 1970 with a conviction for petit larceny and continued through 1990 with a conviction for criminal possession of a controlled substance in the fifth degree. With respect to defendant's Sandoval motion, the only convictions upon which County Court precluded cross-examination were the 24-year-old petit larceny conviction, and a 19-year-old disorderly conduct conviction. As to the remainder of defendant's convictions, dating back 18 years to 1976, the court ruled cross-examination would be proper. The court expressly permitted, if not encouraged, ² inquiry in every instance into the original charge for which defendant had been arrested, and whether or not the ultimate conviction represented a reduced, or plea-bargained disposition.

The prosecutor took full advantage of the Sandoval ruling, with a full one-third of his cross-examination of defendant devoted to his criminal record. As condoned by County Court, the questioning was not confined to defendant's criminal convictions, but included thorough eliciting of the original charges for which defendant was...