Opinion
March 26, 1987
Appeal from the Supreme Court, New York County (Thomas Galligan, J.).
Defendant Sanders and two codefendants, Alvin Dow and Prince Sweeper, were jointly indicted and tried for the murder of two drug dealers, James Davis and Joseph Watson. The People proved at trial that while it was Sweeper and Dow who carried out the slayings, Sanders instigated and procured the homicides by steering the two killers to the scene of the crime, his sister Nadine's apartment, with information that drugs and money were stashed there. In a three-page handwritten statement to Detective Donovan, and a 79-page statement responding to inquiries by the Assistant District Attorney, defendant confessed his involvement in the crime, named his accomplices, and admitted that he knew Sweeper and Dow to be cold-blooded killers whose practice was to leave no eyewitnesses alive after raids of this kind. There was also proof that defendant, knowing this, contrived the absence of his sister at the time of the crime, and that he shared in the loot after the killers made good their escape.
After the jury verdict, but before sentencing, defense counsel discovered that in the course of its deliberations the jury had been inadvertently permitted to receive an unredacted transcript of defendant's confession marked only for identification instead of the redacted version actually received in evidence. In subsequent proceedings to vacate the verdict, the People conceded that this was prejudicial error as to Dow and Sweeper. They have since been retried and the matter of the unredacted transcript is no longer an issue as to them. However, with respect to defendant Sanders, the People successfully urged at Criminal Term, and now reiterate on appeal, that the error in submitting the unredacted statement to the jury was not sufficiently prejudicial to warrant a reversal of his conviction. We do not agree because evidence of two serious uncharged crimes committed by Sanders (one of which was contained in the transcript even as redacted) was improperly permitted to taint the verdict against him.
Sanders never became a witness on his own behalf. His unredacted statement, unfortunately, contained extensive questioning of him by the Assistant District Attorney concerning a robbery charge filed by Barbara Felder, the mother of his child with whom he lived. It was Ms. Felder's complaint which provided the original predicate for his arrest in this case. That the jury was exposed to information about this crime, reference to which the People had earlier agreed on the record to expunge, must be deemed prejudicial (People v. Bouton, 50 N.Y.2d 130, 137-138; see, People v. Rivera, 26 N.Y.2d 304). The fact that defendant, in the same transcript, gave a self-serving and exculpatory version of the incident could not fully erase the potential prejudice.
We also hold that Criminal Term erred in declining to redact that portion of defendant's statement which admitted that three years prior to these homicides he had worked for one of the victims, James Davis, in the latter's drug-selling business. The rationale for the court's ruling was that this admission established a basis for defendant's "knowledge of how [Davis] transacted his business and how much money * * * or how much drugs he might * * * have on a particular occasion." The prejudice of branding defendant as a drug dealer for this purpose far outweighed the probative value of this evidence, particularly since defendant never disputed that he knew Davis was in possession of money and narcotics when he made his fatal disclosures to Davis' killers. Defendant's statements revealed that he had learned of a specific new shipment of heroin to Davis, and that there was money in the apartment, by overhearing conversations to that effect on a visit to his sister. In the absence of any necessity for this disclosure of Sanders' prior criminal involvement in drug dealing, this prejudice cannot be overlooked (see generally, People v. Ventimiglia, 52 N.Y.2d 350; People v. Santarelli, 49 N.Y.2d 241; see also, People v. Cook, 42 N.Y.2d 204). Defendant's knowledge of the manner in which Davis ran his narcotics business in 1979 was neither material nor persuasive evidence on the issue of whether appellant "set up" Davis and Watson to be robbed and killed.
We have carefully examined, and find lacking in merit, defendant's contention that his statements should be suppressed in their entirety. On the record made below, the trial court was amply supported in its determination that Louise Rivera's apartment, where the police arrested defendant without a warrant after entering without consent, was not defendant's place of residence, and that there was therefore no legitimate expectation of privacy such as would constitute a violation of defendant's rights under Payton v. New York ( 445 U.S. 573). We further find that when the Assistant District Attorney interviewed defendant, he did not violate his right to counsel simply because another assistant in the same office knew of unrelated charges pending against defendant, and was aware of the possibility that he was represented by counsel in one or more of those cases. The knowledge of one assistant of a suspect's pending cases cannot be automatically imputed to every other member of the large legal staff of the prosecutor's office. It is clear that no joint investigation was involved here, nor was the assistant deliberately insulated from any information about the pending cases (see, People v. Servidio, 54 N.Y.2d 951; People v Cunningham, 60 N.Y.2d 930).
Concur — Kupferman, J.P., Ross, Asch, Kassal and Wallach, JJ.