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People v. Nicholas

Supreme Court, Appellate Division, Third Department, New York.
Jul 23, 2015
130 A.D.3d 1314 (N.Y. App. Div. 2015)




The PEOPLE of the State of New York, Respondent, v. Michael A. NICHOLAS, Appellant.

Cheryl Coleman, Albany, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Devin J. Anderson of counsel), for respondent.

Cheryl Coleman, Albany, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Devin J. Anderson of counsel), for respondent.

Before: GARRY, J.P., EGAN JR., ROSE and LYNCH, JJ.


LYNCH, J.Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered September 6, 2013, upon a verdict convicting defendant of the crimes of criminal sale of controlled substance in the third degree and criminal possession of a controlled substance in the third degree.

Following his alleged sale of crack cocaine to a confidential informant (hereinafter CI) on October 9, 2012, defendant was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Defendant was thereafter convicted as charged and sentenced, as a second felony offender, to concurrent prison terms of 12 years, plus three years of postrelease supervision. Defendant now appeals. We disagree with defendant's contentions that his convictions were not supported by legally sufficient evidence and were against the weight of the evidence. Defendant primarily maintains that the People failed to prove beyond a reasonable doubt that he was the person who possessed and sold the crack cocaine. He also challenges the CI's credibility.

Scott Gillis, a police detective, testified at trial that defendant became the target of a narcotics investigation following his presence at a September 27, 2012 controlled buy between the CI and another individual at an apartment in the Village of Hudson Falls, Washington County. Thereafter, on October 9, 2012, the CI arranged to purchase crack cocaine from defendant at the same location. After a search of the CI confirmed the absence of contraband, he was provided with $100 of prerecorded buy money, equipped with an audio recording and transmitting device and dropped off by Gillis a few blocks from the residence. Gillis observed the CI walk to the apartment building, although he did not see him enter the residence. According to the CI, defendant and two other men were inside the apartment at the time of the sale. After a coded discussion with defendant about prices of narcotics, the CI gave him the buy money in exchange for a bag of crack cocaine. Gillis was able to contemporaneously listen to the conversation in the residence via the audio device, but he did not witness the transaction, nor was it apparent from the recording that a drug sale had even occurred. The CI then reconvened with Gillis, turned over the bag of crack cocaine and submitted to another search, which revealed no contraband. A lab analysis of the substance in the bag confirmed that it was, in fact, cocaine. Notably, the buy money was never recovered by law enforcement.

A verdict is legally insufficient “where, viewing the record in the light most favorable to the prosecution, there is no valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [internal quotation marks and citation omitted] ). As to defendant's challenge to the weight of the evidence, given that an acquittal would not have been an unreasonable outcome, we must weigh “the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony while viewing the evidence in a neutral light and giving deference to the jury's credibility determinations” (People v. Gibson, 121 A.D.3d 1416, 1418, 995 N.Y.S.2d 383 [2014], lv. denied 24 N.Y.3d 1119, 3 N.Y.S.3d 761, 27 N.E.3d 475 [2015] [internal quotation marks and citation omitted]; see People v. Johnson, 91 A.D.3d 1194, 1196, 937 N.Y.S.2d 443 [2012], lv. denied 18 N.Y.3d 995, 945 N.Y.S.2d 649, 968 N.E.2d 1005 [2012] ). Here, the only direct evidence of defendant's presence in the apartment at the time of the sale was the testimony of the CI, who not only implicated defendant in the transaction, but also identified his voice at trial during a playback of the audio recording. Accordingly, the entire case hinged on the CI's credibility. Although the CI gave testimony that was inconsistent with his grand jury testimony, received compensation for executing the crack cocaine purchase, worked with law enforcement on other controlled buys for approximately five years and had an extensive criminal history, such information was presented to the jury, which clearly credited the CI's testimony (see People v. Richards, 124 A.D.3d 1146, 1147, 2 N.Y.S.3d 689 [2015], lv. denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ; People v. Wingo, 103 A.D.3d 1036, 1037, 962 N.Y.S.2d 422 [2013], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ; People v. Tisdale, 103 A.D.3d 987, 988, 959 N.Y.S.2d 764 [2013], lvs. denied 21 N.Y.3d 1004, 1010, 971 N.Y.S.2d 255, 993 N.E.2d 1278 [2013] ). Thus, we cannot say that the evidence was legally insufficient or that the verdict was against the weight of the evidence (see People v. Wingo, 103 A.D.3d at 1036–1037, 962 N.Y.S.2d 422 ; People v. Jones, 101 A.D.3d 1241, 1241–1242, 955 N.Y.S.2d 694 [2012], lv. denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013] ; People v. Heaney, 75 A.D.3d 836, 836, 906 N.Y.S.2d 350 [2010], lv. denied 15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821 [2010] ; People v. Miles, 61 A.D.3d 1118, 1119–1120, 876 N.Y.S.2d 551 [2009], lv. denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 [2009] ).

Gillis testified that the CI's voice was the only voice that he could recognize from the audio recording.

However, we find merit in the claim that defendant was deprived of a fair trial due to the cumulative effect of erroneously admitting evidence of prior uncharged crimes and the improper vouching by a witness for the People. “Evidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his [or her] past” (People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ; accord People v. Buskey, 45 A.D.3d 1170, 1172, 846 N.Y.S.2d 701 [2007] ; see People v. Arafet, 13 N.Y.3d 460, 465, 892 N.Y.S.2d 812, 920 N.E.2d 919 [2009] ). However, such evidence “may be admitted where [it] fall[s] within the recognized Molineux exceptions—motive, intent, absence of mistake, common plan or scheme and identity—or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness's narrative” (People v. Rivera, 124 A.D.3d 1070, 1073, 2 N.Y.S.3d 279 [2015] [internal quotation marks and citation omitted]; see People v. Morris, 21 N.Y.3d 588, 594, 976 N.Y.S.2d 682, 999 N.E.2d 160 [2013] ). “To be inextricably interwoven ... the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence” (People v. Crandall, 67 N.Y.2d 111, 116, 500 N.Y.S.2d 635, 491 N.E.2d 1092 [1986] ; see People v. Ventimiglia, 52 N.Y.2d 350, 361, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981] ). In other words, “it must be ‘evidence relating directly to the crime charged’ such that ‘the value of the evidence clearly outweighs any possible prejudice’ ” (People v. Crandall, 67 N.Y.2d at 116–117, 500 N.Y.S.2d 635, 491 N.E.2d 1092, quoting People v. Vails, 43 N.Y.2d 364, 368–369, 401 N.Y.S.2d 479, 372 N.E.2d 320 [1977] ). Before admitting evidence of prior uncharged crimes, the trial court must determine that its probative value outweighs its prejudicial effect (see People v. Till, 87 N.Y.2d 835, 836, 637 N.Y.S.2d 681, 661 N.E.2d 153 [1995] ; People v. Elmy, 117 A.D.3d 1183, 1187, 984 N.Y.S.2d 672 [2014] ). In short, “under ... Molineux jurisprudence, we begin with the premise that uncharged crimes are inadmissible and, from there, carve out exceptions” (People v. Resek, 3 N.Y.3d 385, 390, 787 N.Y.S.2d 683, 821 N.E.2d 108 [2004] ).

In their Molineux proffer, the People sought to introduce evidence of a September 24, 2012 meeting at the apartment among defendant, the CI and others, during which defendant allegedly possessed a handgun and handled numerous bags of crack cocaine. They also included in their application the September 27, 2012 controlled buy at which defendant was present. County Court permitted evidence as to both events, but prohibited evidence as to the handgun and crack cocaine from the September 24, 2012 event on the ground that such testimony would be too prejudicial. The court specifically pointed out that the September 27, 2012 event was not a sale involving defendant. Although the court did not elaborate, this decision reflects the requisite balancing of the probative value of the evidence against its prejudicial effect (see People v. Meseck, 52 A.D.3d 948, 950, 860 N.Y.S.2d 263 [2008], lv. denied 11 N.Y.3d 739, 864 N.Y.S.2d 397, 894 N.E.2d 661 [2008] ).

At trial, however, the CI testified that defendant was not only present during the September 27, 2012 controlled purchase of crack cocaine, but that he had also participated in the transaction by providing the actual drugs. County Court denied defendant's prompt motion for a mistrial, but otherwise sustained his objection and struck this portion of the CI's testimony, without further limiting instructions to the jury. In our view, this revelation was highly prejudicial, as it related to a recent uncharged crime that was nearly identical to the sale for which defendant was on trial (see People v. Wallace, 31 A.D.3d 1041, 1043–1045, 818 N.Y.S.2d 684 [2006] ; People v. Foster, 295 A.D.2d 110, 113, 743 N.Y.S.2d 429 [2002], lv. denied 98 N.Y.2d 710, 749 N.Y.S.2d 7, 778 N.E.2d 558 [2002] ). Shortly thereafter, the CI recounted that, upon entering the apartment on October 9, 2012, he had observed defendant sitting at a table “with large amounts of heroin and crack cocaine in front of him.” Although no reference to “heroin” was included in the People's Molineux proffer, or otherwise previously disclosed, the court overruled defendant's objection, permitting further testimony from the CI about the presence of heroin. Because defendant was not charged with possession or sale of heroin, it cannot be said that this evidence was directly related to or in any way necessary to explain his alleged possession and sale of crack cocaine such that it was inextricably interwoven into the CI's narrative (see People v. Crandall, 67 N.Y.2d at 116–117, 500 N.Y.S.2d 635, 491 N.E.2d 1092 ; People v. Ventimiglia, 52 N.Y.2d at 361, 438 N.Y.S.2d 261, 420 N.E.2d 59 ; compare People v. Buchanan, 95 A.D.3d 1433, 1435–1436, 944 N.Y.S.2d 378 [2012], lvs. denied 22 N.Y.3d 1039, 1043, 981 N.Y.S.2d 373, 4 N.E.3d 385 [2013] ; People v. Torres, 19 A.D.3d 732, 734, 797 N.Y.S.2d 149 [2005], lv. dismissed 5 N.Y.3d 810, 803 N.Y.S.2d 39, 836 N.E.2d 1162 [2005] ). Significantly, the court did not attempt to cure the prejudice arising from the CI's improper testimony by issuing an instruction either at the time of defendant's objection or during the jury charge (compare People v. Tinkler, 105 A.D.3d 1140, 1143, 963 N.Y.S.2d 415 [2013], lv. denied 21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013] ; People v. Reid, 97 A.D.3d 1037, 1038, 949 N.Y.S.2d 257 [2012], lv. denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012] ; People v. Leonard, 83 A.D.3d 1113, 1117, 921 N.Y.S.2d 337 [2011], affd. 19 N.Y.3d 323, 947 N.Y.S.2d 821, 970 N.E.2d 856 [2012] ; People v. Delaney, 42 A.D.3d 820, 822, 839 N.Y.S.2d 631 [2007], lv. denied 9 N.Y.3d 922, 844 N.Y.S.2d 177, 875 N.E.2d 896 [2007] ). Compounding the problem, County Court had earlier denied defendant's application to redact that part of the audio recording of the October 9, 2012 event, which referenced the pricing and packaging of “dog food,” a code name for heroin. By its ruling, the court was apparently under the erroneous impression that an undercover audio recording of the transaction in issue could not be redacted. Coming at the beginning of the recording, this commentary should have, and easily could have, been redacted.

Notwithstanding defendant's failure to make such a request, County Court should have provided appropriate limiting instructions to the jury (see People v. Resek, 3 N.Y.3d at 389, 787 N.Y.S.2d 683, 821 N.E.2d 108 ; People v. Mitchell, 112 A.D.3d 1071, 1074, 977 N.Y.S.2d 136 [2013], lv. denied 22 N.Y.3d 1140, 983 N.Y.S.2d 498, 6 N.E.3d 617 [2014] ).

The audio recording contained a conversation between defendant and the CI regarding the sale of “dog food,” i.e., heroin. Defendant moved to redact those portions of the recording referring to dog food on the basis that the jury would incorrectly infer that the coded language concerned the crack cocaine sale with which defendant was charged. County Court denied defendant's request and the People played the recording in full for the jury, neglecting to explain the term at issue. Defendant was then pressed to bring out the meaning of dog food during his cross-examination of the CI in order to ameliorate any confusion resulting from leaving the term undefined.


Further prejudice resulted from the People's redirect examination of Gillis, who stated that the CI was “very reliable and very trustworthy.” After County Court overruled defendant's objection, and characterized the testimony as “opinion,” Gillis elaborated that the CI had “never given [him a] reason to not believe anything that [the CI] is telling [him].” Allowing Gillis to vouch for the CI's credibility was clearly improper (see People v. Guay, 18 N.Y.3d 16, 24, 935 N.Y.S.2d 567, 959 N.E.2d 504 [2011] ; People v. McClary, 85 A.D.3d 1622, 1623–1624, 925 N.Y.S.2d 307 [2011] ; People v. Fredrick, 53 A.D.3d 1088, 1088–1089, 861 N.Y.S.2d 895 [2008] ; see also People v. Slaughter, 189 A.D.2d 157, 160, 596 N.Y.S.2d 22 [1993], lv. denied 81 N.Y.2d 1080, 601 N.Y.S.2d 600, 619 N.E.2d 678 [1993] ). The effect was compounded by the People's summation, wherein the prosecutor surmised that law enforcement had used the CI for several years because of his reliability (see People v. Oathout, 21 N.Y.3d 127, 131, 967 N.Y.S.2d 654, 989 N.E.2d 936 [2013] ; People v. Casanova, 119 A.D.3d 976, 978–979, 988 N.Y.S.2d 713 [2014] ). While we recognize that County Court sustained defendant's objection, no curative instruction was issued, and we remain concerned that the prosecutor's remark amplified the effect of Gillis' improper vouching (see People v. Wallace, 31 A.D.3d at 1044, 818 N.Y.S.2d 684 ).

In view of the fact that defendant was one of three people who could have sold the crack cocaine to the CI during a transaction that was neither verbalized nor witnessed by anyone but the CI, we cannot say that the proof of defendant's guilt is overwhelming (see id. at 1043–1045, 818 N.Y.S.2d 684 ), such that the errors at trial may be deemed harmless (see People v. Brown, 114 A.D.3d 1017, 1019–1020, 981 N.Y.S.2d 154 [2014] ; People v. Parham, 74 A.D.3d 1237, 1238, 904 N.Y.S.2d 144 [2010], lv. denied 15 N.Y.3d 923, 913 N.Y.S.2d 650, 939 N.E.2d 816 [2010] ; see generally People v. Gillyard, 13 N.Y.3d 351, 357, 892 N.Y.S.2d 288, 920 N.E.2d 344 [2009] ). Rather, it is our view that the cumulative effect of these errors deprived defendant of a fair trial (see People v. Wlasiuk, 32 A.D.3d 674, 675, 821 N.Y.S.2d 285 [2006], lv. dismissed 7 N.Y.3d 871, 824 N.Y.S.2d 616, 857 N.E.2d 1147 [2006] ). Accordingly, we must reverse defendant's judgment of conviction and remit for a new trial. In light of this disposition, defendant's remaining contentions have been rendered academic.

GARRY, J.P., and ROSE, J., concur.EGAN JR., J. (concurring).

I agree that the cumulative errors identified by the majority warrant reversal of defendant's conviction and the remittal of this matter for a new trial. Where the majority and I part company, however, is with respect to the evidence relative to defendant's alleged possession of heroin. To my analysis, this uncharged criminal activity falls squarely within one or more of the recognized Molineux exceptions. Here, the confidential informant (hereinafter CI) testified that, upon entering the apartment on the day in question, he observed defendant “sitting at the table with large amounts of heroin and crack cocaine in front of him.” Such testimony, in my view, was part and parcel of the CI's attempt to set the scene and provide context for the October 9, 2012 transaction, thereby providing necessary background information and/or completing the CI's narrative (see People v. Rivera, 124 A.D.3d 1070, 1073, 2 N.Y.S.3d 279 [2015] ). Hence, step one of the Molineux test was satisfied.

Although I agree that, under the particular facts of this case, the probative value of such evidence was outweighed by its prejudicial effect, thereby warranting the exclusion thereof, I write separately to make clear that not every casual, off-the-cuff reference to an uncharged crime constitutes reversible error. For example, it would be neither unusual nor surprising if, during the course of a controlled buy, a CI or an undercover officer observed additional evidence of criminal activity beyond that with which a particular defendant ultimately was charged. Although any testimony relative to such uncharged criminal activity indeed should be part of the People's Molineux application and must satisfy that two-part test in order to be admitted into evidence at trial, not every fleeting or isolated reference to uncharged criminal activity constitutes a Molineux violation, nor does the mere mention of an uncharged crime necessarily afford a basis upon which to reverse an otherwise valid conviction. And, to the extent that the majority's decision suggests otherwise, I disagree.ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Washington County for a new trial.

Summaries of

People v. Nicholas

Supreme Court, Appellate Division, Third Department, New York.
Jul 23, 2015
130 A.D.3d 1314 (N.Y. App. Div. 2015)
Case details for

People v. Nicholas

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Michael A. NICHOLAS…

Court:Supreme Court, Appellate Division, Third Department, New York.

Date published: Jul 23, 2015


130 A.D.3d 1314 (N.Y. App. Div. 2015)
14 N.Y.S.3d 214
2015 N.Y. Slip Op. 6269

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