The People, Respondent,v.Julio Peguero-Sanchez, Appellant.BriefN.Y.March 21, 2017THE LA.W OFFICE OF STEPHEN N. PREZIOSI P.G. 48 WALL STREET, 5 TH FLOOR NEw YoRK, NEWYORK 10005 ( 2 12) 3 00-3045 ·FAX: (21 2 ) 937-:3772 E~IAIL: NEWYORKAPP E LLATELAWYER@OHAIL.CO H WWW.NEWYORKA PP L ELLATELAWYER.COM New York Court of Appeals 20 Eagle Street December 22, 2016 Albany , New York Attention: Clerk of the Court Re: Arguments on lhe Merits for People v. Julio Peguero-Sanchez A.D. # 2014102568 and APL-2016-00195 Dear Mr. Asiello, I am submitting the following arguments on behalf of my client, Mr. Julio Peguero-Sanchez. There are three arguments for this Court's consideration. STATEMENT OF THE ISSUES I. Whether the Due Process right to a fair trial was violated by the cumulative effect of the prosecution's misconduct including: a. The admission of evidence of uncharged crimes by a prosecution witness violating the Molineux Rule where a prosecution witness offered unsolicited testimony that defendant was ·'dealing with" somebody, inferring that he was selling drugs. b. The admission of 46 text messages on the People's rebuttal case allegedly to discredit the credibility of the defendant' s testimony, but instead were used by the prosecution as evidence that defendant was selling illegal drugs. c. The testimony of the arresting officer solicited by the prosecutor detailing his experience with narcotics sales and arrests. d. The prosecution 's closing arguments emphasized the evidence of a sale of illegal narcotics with no less than 21 references to evidence of the uncharged crime including references to the dollar value of the cocaine, exaggerations of the amount and weight of the cocaine, references to coded and secretive messages used by defendant as are used in illegal sales of narcotics. e. Sentencing: the prosecution made express arguments at sentencing that Mr. Peguero-Sanchez was guilty of the sale of illegal narcotics, an uncharged crime, when he was found guilty only of possession of narcotics. f. The prosecution evoked evidence that the defendant invoked his right to counsel and to remain silent in a post-arrest interview with police. 2. Whether the prosecution violated the Molineux Rule by introducing evidence of uncharged crimes and compounded the error by making no less than 21 references to the uncharged crime in its closing arguments. 3. Whether the prosecution violated the collateral matter rule when it used extrinsic evidence in the form of 46 text messages to contradict the defendant's testimony that he was meeting his girlfriend for dinner and the prosecution later used that evidence to demonstrate that defendant was meeting with someone for the purpose of selling illegal drugs. ARGUMENT POINT I WHETHER THE DEFENDANT WAS DENIED THE DUE PROCESS RIGHT TO A FAIR TRIAL WHERE HE WAS CHARGED WITH DRUG POSSESSION AND THE PROSECUTION COMMIITED MISCONDUCT BY ADM1ITING EVIDENCE OF THE UNCHARGED CRJME OF ILLEGAL SALE OF NARCOTICS THROUGH TESTIMONY, TEXT MESSAGES AND EMPHASIZED THESE FACTS IN CLOSING ARGUMENTS AND AT SENTENCING. The prosecution violated the Due Process right of the defendant to a fair trial when he made illegal narcotic sales the undeniable theme of the tri al; Mr. Peguero- Sanchez was charged only with drug possession. Julio was denied the due process right to a fa ir trial when the prosecution committed misconduct by introducing evidence of an uncharged crime and compounded the prejudice by highlighting the uncharged criminal acts in closing arguments. Although Julio was charged with possession of illegal drugs, the prosecution introduced evidence at 2 trial that led the jury to believe that he was committing the uncharged crime of selling illegal drugs. That evidence included a prosecution witness who testified that he was "dealing" drugs, the testimony of the arresting officer that he was trained in identifying and making drug sale arrests, the introduction of text messages from defendant's phone, the prosecution's assertion that he used "coded language" to arrange a cocaine sale, and in closing arguments no less than 21 references to the assertion that he was arranging a meeting to sell cocaine, an uncharged crime at this trial. Finally, at sentence the prosecution expressly told the court that Mr. Peguero-Sanchez was a drug dealer and should be sentenced for the crime of selling illegal narcotics. The cumulative effect of the prosecutor's misconduct caused such substantial prejudice to defendant that it deprived him of the due process right to a fair trial. The Prosecution Elicited Damaging Testimony About The Sale O(Drugs, An Uncharged Crime. And Not Relevant To The Charged Crime O(Possession. The prosecutor repeated ly brought into evidence information re levant to the uncharged crime of sale of a controlled substance. Information regarding the officer' s knowledge of drug sales is not relevant to the crime charged and it serves only to prejudice the jury into believing that Mr. Peguero-Sanchez is a drug dealer. All this evidence served to indicate to the jury that Mr. Peguero-Sanchez was a drug dealer. - Direct Testimony o(O{flcer Janicke y During the direct examination of a prosecution witness, Officer Janickey, the prosecutor asked the officer a series of questions regarding his experience in the sale of narcotics. The prosecutor began the examination of the arresting officer by asking general background questions regarding education and experience. However, the first question asked after establishing the number of years that Officer Janickey worked in the police 3 department was "are you generally familiar with street level narcotics lrqffickingr (T603) He went on to ask if Officer Janickey has "done surveillance on homes out of which narcotics are sold{}" (T603) At this point, defense counsel objected, was overruled, and the questioning about sale of narcotics continued. The prosecutor asked "have you done surveillance of suspects selling cocaine," (T603) "have you debriefed people who sell cocaine," (T603) and "have you debrief people who buy cocaine{}" (T603) Officer Janickey answers in the affirmative each time and the prosecutor continues down the path of asking questions regarding the sale of drugs. The questions changed to being about the search of homes and cars out of which narcotics are sold and whetJ1er the ofticer was familiar with the prices and quantities that cocaine is sold in. (T604) The prosecutor then asked ''.for instance, are you familiar with the price of a kilogram of cocaine" (T604) which was then objected to once more by the defense attorney and once again overruled by the trial judge. The decision by the trial judge to allow these questions and the subsequent answers to enter into evidence constituted prosecutorial misconduct and a violation of Mr. Peguero-Sanchez's due process rights to a fair trial. The Prosecution 's Witness Deliberately Gave Unsolicited Testimony 0[ Uncharged Criminal Acts On Cross-Examination. During the cross-examination of a prosecution witness, Detective Rivera, defense counsel posed a question regarding possible DNA evidence on the outside of the bag that the evidence was found in. The following colloquy took place: (T896) Question: So you wanted to see if his DNA was on the bag, right? Answer: Yes. Question: But also may be his DNA wasn 't on the bag, that would be important for us, right? 4 Answer: Or maybe anybody that he may have been dealing with, yes. The prosecution witness deliberately added this gratuitous testimony that had nothing to do with the question that he was asked by defense counsel. The question posed dealt only with DNA evidence on the bag that the evidence was found in and whether Julio' s DNA had been found on it. The gratuitous response of the prosecution's witness was that he was "dealing with" someone for the purpose of selling drugs. This was a particularly egregious error because not only was the answer unsolicited by defense counsel, but also because Julio was not charged with selling illegal drugs. The witness, a highly experienced police detective, offered this unresponsive, highly damaging testimony regarding Lmcharged crimes. Defense counsel made the appropriate objection and moved for a mistrial immediately. (T938) The trial court denied defense counsel's application for a mis-trial. (T943) The People's Rebuttal Case - The Highly Prejudicial Testimony Was Exacerbated When The People Introduced Evidence In The Form 0[ Text Messages From The Defendant 's Phone Showing That He Was In The Parking Lot Waiting To 1\1eet Someone Other Than His Girlfriend The unsolicited testimony of the prosecution's witness was exacerbated when the People, on rebuttal , offered illegally obtained text messages from defendant's phone that stated defendant was communicating with someone to let them know that he was there in the parking lot of Applebees and had cocaine. (Tl 054-Tl 074) The inference that the People foisted upon the jury was that Julio was there to make a drug sa le and was communicating with someone else trying to arrange the sale. 5 Defense counsel argued that the People's presentation of the text messages, which stated that he was waiting for some other man telling him, in "coded language", that he was at Applebees and possessed cocaine, was intended to lead the jury to infer that Julio was attempting to sell illega l drugs. (Tl 064) The People' s assertion that this was rebuttal evidence to show that he lied about who he was meeting (Tl 060), was a thinly veiled attempt to place evidence before the jury that only led them to infer that he was selling illegal drugs, an uncharged crime. This clear inference that the People asserted circumvented both the Molineux rule and den ied him the due process right to a fa ir trial. The People introduced into evidence a chart of unredacted text messages that were originally in Spanish. The text messages dated from the night before the arrest and up to the time of the arrest. The text messages purportedly are communications that set up a meeting for the sale of illegal narcotics. The People introduced them on rebuttal to contradict the testimony of Julio Peguero-Sanchez that he was in that parking lot to meet his girlfriend. However, the People did not use this extrinsic evidence on their rebuttal case only to contradict the testimony of defendant, but they used it to show that he was effectuating a drug sale, again an uncharged crime in this case. The People deliberately ci rcumvented the .Molineux rule and the due process rights of the defendant to a fair trial in order to make the uncharged accusation that defendant was selling illegal narcotics. Prosecurorial Misconduct: The People 's Closing Arguments Emphasized The Evidence O[A Sale 0{/llegal Drugs When They Made No Less Than 21 References To Evidence O[The Uncharged Crime. The People further prejudiced Julio when they emphasized in their closing arguments the evidence that he was there for the purpose of selling illegal drugs. In the 6 People's summation they made no less than 2 1 references to the sale of illegal drugs. This was so highly prejudicial to the Julio that it deprived him of the due process right to a fair trial. The various references that the People made in their closing arguments had to do with the dollar value of the cocaine (not an element of the crime charged here), the prosecution's exaggeration of the weight and amount of cocaine, the text messages that he was there to meet some man and that he was using "coded language" to make him aware that he had cocaine. The Dollar Value OfThe Cocaine The prosecution compounded the prejudice to the defendant when, at closing arguments the prosecutor emphasized the dollar amount and value of the cocaine that Julio was alleged to have possessed. This is not an element of the crime and purposefully inflamed the jury and led them to believe that he was selling illegal drugs for big money. On no less than six occasions during closing arguments the prosecutor mentioned the dollar value of the cocaine allegedly possessed by Julio. The excerpts from the prosecution's closing argument are as follows: At T1118 lines 2-4 the prosecutor argued: "He had over - approximately, conservatively. twenty thousand dollars worth of cocaine at this feet. And that 's why he slid down in his seal." Again at T1120 lines 5-l 0 the prosecutor repeated: "If you have half a kilo of cocaine at your feel, over twenty thousand dollars worth of cocaine, you recognize a police officer, it 's reasonable that someone who had that cocaine in their possession would slide down. " Again at T1128 lines 14-15 the prosecutor emphasized: 7 ''Where did he gel twenty thousand dollars worth of cocaine?., At Tll29 lines 3-5 the prosecutor highl ighted the dollar value again: "He went out and bought twenty thousand dollars worth of cocaine in order to make a case. " At T1130 lines 17-20 the prosecutor underscores the dollar amount again: "So he's claiming that one of the barber shop boys Left the twenty thousand dollars 'vVOrlh of cocaine in their boss' car \JvUhouttelling him" At Tl135 (lines 20-25) - T11 36 (lines 1-6) the prosecutor infers that Julio is supplementing his income as a barber with the proceeds from the sale of cocaine: "Now, the defendant also testified that he owns a home, makes approximately -you know, I'll give him the high end -thirty two hundred a month and pays- again, I'll give him the high end because I think he said twenty seven, twenty eight - twenty eight hundred dollars a month in mortgage. He makes thirty two hundred a month, pays a mortgage of twenty eight hundred a month. No"v, that 's not paying for cable, food, heat, dinners with girlfriend, gas or any car expenses. The prosecution is clearly making the argument that Julio does not make enough money to live on as a barber, given his expenses. The inference that the prosecutor is hitti ng the jury over the head with is that Julio is a drug dealer, that he sells illegal drugs - this is an uncharged crime in this trial and the argument made in People's closing constitutes prosecutorial misconduct. The prosecutor's arguments were so outrageous and prejudicial to the defendant that he was denied the due process right to a fai r trial. All of the People's arguments and the evidence that they presented to the jury led to the infe rence of the uncharged crime of intent to sell or an attempted sale of illegal drugs. Julio was not charged with any of these crimes, and the People's evidence and arguments in closing constituted a violation of the Molineux rule, prosecutorial misconduct and a violation of the due process right to a fair trial. The Prosecution Exaggerates The Amount And Weight Of Cocaine 8 In closing arguments the prosecution used exaggerated terms when referring to the amount of cocaine allegedly possessed by Julio. This was done to emphasize the highly prejudicial argument that he was committing the uncharged crime of selling illegal drugs in large quantities. The prosecutor stated in closing arguments seven times that Julio possessed either half a kilo or three quarters of a kilo of cocaine. The prosecution's expert witness, Peter Tracy, a forensic scientist who actually weighed the material, testified at trial that there was 300 grams or 10.6 ounces of cocaine. The prosecution's closing arguments that there was either a half-kilo or three-quarters of a kilo was belied by the well known fact that there are 1000 grams in a kilo or 35.2 ounces. The prosecutor deliberate ly exaggerated the amounts and weights of the cocaine in order to lead the jury to the inference that Julio was selling large quantities of drugs for big money. This violated his due process right to a fair tria l. The deliberate exaggerations at prosecution's closing are as follows: At Tlll3 lines 12-14: "On November 1 01, , 201 J, Mr. Peguero had over half a kilo of cocaine at thisfeet and he knew it was there " At T 1117 lines 20-23 "Well, he's not a casual observer because he had a ha(f a kilo of- over half a kilo of cocaine at this feet. " At Tl120 lines 5-8 ''If you have half a kilo of cocaine at your feet, over h11enty thousand dollars worth of cocaine, you recognize a police officer ..... At Tll23 lines 6-8 9 " I would suggest to you is not nearly as important as the fact that he had half a kilo of cocaine atthisfeet. " AtT1128lines 11-13 "Officer Janickey planted if there. Qfficer Janickey is driving around with over half a kilo of cocaine looking to make a case?" Again at T 1128 lines 17-20 the prosecutor exaggerates even further by stating that there was three-quarters of a kilo of cocaine: "All the back and forth regarding one plastic bag. That 's one plastic bag. This is three quarters of a kilo of cocaine. Twenty thousand dollars. ,. AtT1 135lines 13-17: "These text messages later on set up the exact time, they set up the same location and the exact date where the defendant was found in possession of over half a kilo of cocaine. " The prosecution deliberately exaggerated the amounts of cocaine allegedly possessed by Julio by a lmost doubling it, and in one instance almost tripling the amount a llegedly possessed. This was all done with the objective of leading the jury to the inference that he was illegally selling large quantities of drugs. The closing arguments by the prosecution focused on the uncharged crime of the illegal sale of drugs, and this constituted a due process violation of the right to a fair trial. The Coded Messages To fmther perpetuate his theory and aggregate the prejudice to Julio, the prosecutor argued in closing that the text messages that were introduced into evidence on the People's rebuttal case were in the "coded" and "secretive" language used by the Larger drug dealers so as not to be deciphered by police. Again, the inference that he was committing the uncharged crime of selling illegal drugs. At Tll 35 lines 3-7 10 "Again, this incoming describes him as old man. Then the defendant is asked here, 'What do you have there?' He responds, 'I'll tell you personally. Thanh.' Coded, secretive." At T1137lines 16-19 "As to knowingly, the de.fendanf 's - the circumstances, how do we knmv he possessed it? It 's in his car, if 's ar his feet. He used coded, secretive lcmguage. " All of the references to coded and secretive language are inferences that he is a drug dealer and he is there in that parking lot in front of Applebees to conunit the uncharged crime of selling illegal drugs. The cumulative effect of the inferences made by the prosecution throughout the trial and especially in closing arguments created such a highly prejudicial inference that Julio was denied the due process right to a fair trial. The Arguments That The Prosecution Inferred In Closing Remarks Became Explicit AI Sentencing: The Prosecurion Blatantly Disregards The Due Process Righrs Of The Defendant At Sentence The arguments that the prosecution made in its closing became even more explicit at sentencing. The prosecution's disregard of the rule of due process at sentence requires at a minimum a new sentence. This is strong evidence of the prosecution's attempt to make the argument of the uncharged crime part of thi s case because at sentence the prosecution expressly argued that this was a sale of illegal drugs. Whether during the trial or at sentence, the argument of uncharged crimes constitutes prosecutorial misconduct and violated due process. At sentence the prosecution argued that Julio was sell ing drugs. The following argument was made at sentence: 11 At S3 1 of sentencing transcript the prosecution argues an uncharged crime: " And without even including a significant amount of living expenses, which I 'm sure he is paying, he would be left with a shor~fa/1 of around at least $500 a monlh; and I would submit to your Honor that he filled that shortfall by selling cocaine. " At S5 of the sentencing transcript the prosecution exaggerates the weight of the cocaine: "And the specifics of this crime include the defendant having almost three-quarters of a kilo of cocaine. " At S5 of the sentencing transcript prosecution argues the uncharged crime of the sale of illegal drugs: " ... he was meeting someone not for dinner according to those text messages, he was meeting someone there to complete a cocaine sale. " "The defendant is a cocaine dealer, in fact, he is a large-scale cocaine dealer selling a hundred grams at a time. At S6 of the sentencing transcript: "Having access to cocaine that comes right off the kilo indicates his level, high level of involvement in cocaine trafficking here in Suffolk County." At S6 of sentencing transcript: "And yet the defendant chose to seek additional money by trafficking in large amounts of cocaine despite having a legitimate source of income. " At S7 of the sentencing transcript the prosecution continues to argue that defendant should be punished for the uncharged crime: 1 S numbers refer to the sentencing transcripts. 12 ·'and I would say, your Honor, the text messages which came fi·om his ve1y phone clearly indicate that the defendant was trafficking in cocaine that evening." At S8 of sentencing transcript the prosecution reconunends that he be punished for the uncharged crime of sale of illegal drugs: "After weighing all those factors, the People are recommending twelve years incarceration. We believe that 's appropriate for the defendant 's trafficking in this amount of cocaine and appropriately weighs the lack of criminal histmy ·with the severity of this crime, and that 's ·what our recommendation is. Thank you . . , The prosecution continued to violate the rule of due process at sentence when they argued that he be punished for trafficking in drugs. He received neither a fair trial nor a fair sentencing hearing. The prosecution insisted that he be punished tor something he was never charged with. The Defendant Was Denied His Constitutional Right To Due Process When The Prosecution Evoked Teslimony From A Prosecution Wilness Thai De[endanl Invoked His Right To Remain Silent And Right To Counsel Post-Arrest Julio was denied the due process right to a fair trial when, during the People's case in chief~ the People presented evidence that after he was arrested and read Miranda warnings, he invoked the right to remain silent and the right to counsel. Defense counsel made a timely application for a mis-trial, which the trial court denied. The use of the defendant's post-arrest invocation of the right to counsel and to remain silent during the People's case in chief easily led the jury to infer that he was guilty, and violated his due process right to a fair trial. The conviction must be reversed and thi s case remanded for a new trial. 13 It is axiomatic that a defendant's invocation to the right to counsel, made during interrogation, may not be used against him. People v. Von Werne, 41 N.Y.2d 584, 394 N.Y.S.2d 183, 362 N.E.2d 982 (1977); People v. Whitley, 78 A.D.3d 1084, 912 N.Y.S.2d 257 (2d Dept. 2010); People v. Quinones, 247 A.D.2d 216, 670 N.Y.S.2d 1 (ls1 Dept. 1998). During the course of the trial, the People's witness, Detective Ralph Rivera, testified as follows: QUESTION: Can you explain to the jury how you processed the defendant? ANSWER: The defendant was placed into an interview room where he was read his Miranda rights. He invoked his right to counsel. The People's witness gratuitously offered the testimony that he had refused to make any statement by invoking the right to counsel. The People surgically targeted the moment when Julio was invoking his constitutional rights and put forward that testimony for the jury to hear. This severely prejudiced him in the eyes or the jury and violated his due process right to a fair trial. Silence in these circumstances is ambiguous at best because an innocent person may have, and New York Courts have consistently recognized, many reasons for not speaking to the police. Some of the reasons found by New York Courts include a person's awareness that he is under no obligation to speak, or to the natural caution that arises from his knowledge that anything he says might later be used against him at trial People v. Conyers, 52 N.Y.2d 454, 438 N.Y.S.2d 741, 420 N.E.2d 933; a belief that eff01ts at exoneration would be futile under the circumstances People v. Dawson, 50 14 N.Y.2d 311, 322, 428 N.Y.S.2d 914, 406 N.E.2d 771; because of explicit instructions not to speak from an attorney People v. Conrow, 200 N.Y. 356, 367-369, 93 N.E. 943. It is well settled among New York Courts that there is no probative value to the fact that a defendant chooses to remain silent. However, despite its lack of probative value, the evidence undoubtedly affects a witness' credibility. Jurors, who may not be sensitive to the wide variety of alternative explanations for a defendant's pretrial silence, may assign much more weight to it than is warranted and the evidence creates a substantial risk of prejudice. In the case sub judice, the purposefully direct questions of the prosecutor and the gratuitously provided testimony of the Detective were deliberately designed to make the jury aware that the defendant was invoking the right to counsel, remain silent, and hide behind the law. Harmless Error Analysis Is Not Applicable In This Case As The Testimony Was Deliberately Evoked By The People And The Witness In Order To Prejudice Julio. The purposely-directed question, prompting Julio's invocation of constitutional rights, and the knowingly improper answer by the Detective, bring this case outside the realm of harmless error analysis. Both the prosecutor and the witness were highly experienced professionals and well aware that testimony on the People's case in chief may not include reference to the defendant invoking constitutional rights because it is so highly prejudicial. The Overwhelming i\1/ajority 0{ Cases In The Appellate Division, Second Department Find That This is Not Harmless Error. 15 The overwhelming majority of cases in New York have held that this is not harmless en-or. The Appellate Division, Second Department, as well as other Departments, acknowledge that the error and prejudice is too great to ignore. In People v. Tucker, 87 A.D.3d 1077, 1080, 929 N.Y.S.2d 63 1, 634 (2d Dept. 2011) this Court found that the introduction of testimony of the defendant 's invocation of his constitution rights was not harmless error; in People v. McArthur, 101 A.D.3d 752956 N.Y.S.2d 71 (2cl Dept. 20 12) this Court remanded a case for a new trial where the People merely mentioned the defendant's post arrest silence in closing arguments; in People v. Spruill. 125 A.D.2d 510509 N.Y.S.2d 422 (2d Dept. 1986) this Court found that the error vvas not harmless where the evidence \•Vas not overwhelming; in People v. Robinson, 191 A.D.2d 595594 N.Y.S.2cl 801 (2d Dept. 1993) this Court found where the prosecutor, as here, deliberately elicited testimony conceming post arrest silence that it could not be deemed harmless error; in People v. Them·dore, 1 13 A.D.3cl 703978 N.Y.S.2d 357 (2d Dept. 20 14) where prosecution impeached the defendant with his post arrest silence was not considered harmless error; in People v. Mwphy, 51 A.D.3d 1057 (3d Dept. 2008) the court found that they could not ignore the potential for prejudice to the defendant by such testimony; in People v. Knowles, 42 A.D.3d 662 (3d Dept. 2007) the Court acknowledged that there was a reasonable possibility that evidence of defendant's invocation of his constitutional rights contri buted to his conviction. In this case defense counsel properly requested that the trial cout1 not give a curative instruction for fear of highlighting the prejudicial testimony already before the j ury. Forcing the defense to seek a curative instruction where the trial court reiterates and reinforces for the jury the already prejudicial testimony, rewards the prosecution for 16 having evoked improper and prejudicial testimony and punishes the defendant by confining him to a remedy that highlights for the jurors his refusal to speak to the police by invoking constitutional rights. As this Court has consistently held, the possibility for prejudice is too great, and the error is not harmless. The reference during the People's case in chief to the defendant' s invocation of his right to remain silent and his right to counsel was a due process violation of his right to a fair trial. The conviction should be reversed and a new trial ordered. POINT II WHETHER THE PROSECUTION VIOLA TED THE MOLINEUX RULE BY INTRODUCING EVIDENCE OF UNCHARGED CRIMES AND COMPOUNDED THE ERROR BY MAKING NO LESS THAN 21 REFERENCES TO THE UNCHARGED CRIME IN ITS CLOSING ARGUMENTS AND THEREBY VIOLATED HIS DUE PROCESS RIGHT TO A FAIR TRIAL. In each of the instances mentioned above, the prosecution proffered evidence of an uncharged crime: the testimony that the police officer was experienced in arrest and investigation of narcotic sales, the unsolicited testimony that Mr. Peguero-Sanchez was "dealing" drugs with someone, the text messages inferring that he was there that night to make a drug sale, the closing arguments by prosecution making out the case that he was a drug dealer and the sentencing arguments that expressly state that he should be punished for selling illegal narcotics. All these things were evidence of an uncharged crime that was not raised by the prosecution in a pre-trial Molineux hearing. The evidence of an uncharged crime (i.e. the sale of illegal narcotics) violated the Molineux rule and violated Mr. Peguero-Sanchez' right to a fair trial under the Due Process Clause. The Admission Of Evidence O[An Uncharged Crime By A Prosecution Witness Violated The Molineux Rule. 17 It is well settled in New York that evidence of crimes other than the one charged is itTelevant and may not be introduced to prove guilt. People v. Allweiss, 48 N.Y.2d 400 ( 1979). If evidence of other, uncharged crimes is offered solely to demonstrate the defendant's predisposition to commit the otiense charged, it is inadmissible. People v. Bradley, 20 N.Y.3d 128 (2012). Where the cumulative effect of jmproper admission of evidence of uncharged crimes allegedly committed by defendant was prejudicial to defendant, then he is deprived of a fair trial and a new trial is warranted, despite that trial court gave limiting instruction to the jury on that evidence. People v. Sayers, 64 A.D.3d 728 (2d Dept. 2009). In order for the court to make this assessment, the proponent of the Molineux evidence must request a hearing and present this type of evidence to the court and obtain a ruling on its admissibility prior to trial. In this case, a Molineux hearing was held prior to trial and the People did not raise the crime of sale of illegal drugs. The People violated the Molineux rule and Mr. Peguero-Sanchez' right to a fair trial when they presented evidence of the uncharged crime of sale of illegal narcotics by presenting evidence of the arresting officer's expertise in arrests and investigations of illegal narcotic sales; unsolicited testimony that Mr. Peguero-Sanchez was "dealing" drugs with someone; the introduction of 46 text messages spanning two days to show that defendant was not meeting his girlfriend, but was meeting with another man to effectuate a drug sale; and by making closing arguments that undeniably made 21 references that defendant was a drug dealer 18 POINT III WHETHER THE TRIAL COURT VIOLATED THE COLLATERAL MATTER RULE WHEN IT ADMITTED EXTRINSIC EVIDENCE IN THE FORM OF TEXT MESSAGES TO DEMONSTRATE THE NON-MATERIAL FACT THAT DEFENDANT WAS MEETING WITH ANOTHER MAN TO EFFECT A DRUG SALE THAT HEW AS NOT CHARGED WITH AT TRIAL. It is well settled in New York that a witness may not be impeached by extrinsic evidence on a matter that is merely collateral. People v. Knight, 80 N.Y.2d 845, 847 (1992). In this case the issue was whether or not the defendant was meeting his girlfriend or some other man (for the purpose of selling illegal drugs according to the People). This was not a material issue in the case because Julio was not charged with sale of cocaine, he was charged with possession only. Who he was meeting was a collateral matter and non-essential to the People's case of possession of cocaine. Defense counsel, in response to the People' s argument, correctly argued the collateral matter rule when the People sought to introduce the text messages to prove a non-material issue in the case. (Tl 060) The trial court ruled that the text messages would be admitted, holding that the text messages were not hearsay. (T 1 065) The trial court never made a ruling on defense counsel ' s objection on the ground that the evidence was a collateral matter. The New York Court of Appeals, in People v. Po..,vell, held that when evidence that a witness lied to parole office employees and when a witness was prohibited from testifying about the alleged lies, the trial court did not abuse its discretion "because such extrinsic evidence could not be used to impeach the witnesses on these collateral matters." People v. Powell, 27 N.Y.3d 523, 532 (2016). The court again considered credibility as a collateral matter, this time dealing with the defendant's credibility in 19 Mazella v. Beals. There, the New York Court of Appeals found that ·'collateral matters relevant only to credibility are properly excluded because they distract the jmy from the central issues in the case, and bear the risk of prejudicing the jury based on character and reputation." Mazel/a v. Beals, 27 N.Y.3d 694, 7 11 (20 16). This is exactly what happened here. The trial court allowed in text messages for the purposes of considering the credibility of the defendant and it prejudiced the jury. The evidence of the text messages exacerbated the Molineux violation/unsolicited testimony of Detective Rivera by placing hearsay testimony into evidence that led the jury to believe that Mr. Peguero-Sanchez was meeting someone in that parking lot for the purpose of sell ing illegal drugs, an uncharged crime. The People are using overwhelmingly prejudicial evidence on an irrelevant issue in the case, and the trial judge should have precluded this evidence from coming in. This evidence constituted further misconduct by the prosecution, and violated the Due Process right to a fa ir trial because it so highly prejudiced the defendant in the eyes of the jury. In addition to the Constitutional violation, the introduction of the text messages violated the Collateral Matter Rule as an evidentiary matter. CONCLUSION Mr. Peguero-Sanchez should be granted a new trial because the prosecution's misconduct violated his Due Process right to a fair trial and because the prosecution violated both the Molineux rule and the Collateral Matter rule. he N. Preziosi , Esq. all Street, Fifth Floor New York, New York 10005 212-300-3845 stc henpreziosi@gmail.com 20