Opinion
184-2017
06-29-2018
The PEOPLE of the State of New York, Plaintiff, v. Davante ROBINSON, aka "Benji", Defendant.
Jamie T. Ferrara, Esq., 211 Main Street, Goshen, NY 19024, Attorney for Defendant Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, NY 12701, Attorney for the People
Jamie T. Ferrara, Esq., 211 Main Street, Goshen, NY 19024, Attorney for Defendant
Hon. James R. Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, NY 12701, Attorney for the People
Frank J. LaBuda, J.
This matter comes before the Court by way of Defendant's Omnibus Motion requests for hearings pursuant to People v. Sandoval , 34 NY2d 371 (Ct App 1974) and People v. Ventimiglia , 52 NY2d 350 (Ct App 1981) , as well as the People's request for a hearing pursuant to People v. Molineux , 6 Bedell 264 (Ct App 1901) . The Court granted the requests for same, and held combined Sandoval , Ventimiglia , and Molineux hearings on June 21, 2018.
Defendant was indicted by Sullivan County Grand Jury Indictment # 184-2017. Defendant is charged with one (1) count of Criminal Sale of a Controlled Substance in the Second Degree pursuant to PL § 220.41(1), a Class A felony; three (3) counts of Criminal Sale of a Controlled Substance in the Third Degree pursuant to PL § 220.39(1), a Class B felony; one (1) count of Criminal Possession of a Controlled Substance in the Third Degree pursuant to PL § 220.16(1), a Class B felony; Criminal Possession of a Controlled Substance in the Fourth Degree pursuant to PL § 220.09(1), a Class C felony; and one (1) count of Conspiracy in the Fourth Degree pursuant to PL § 105.10(1), a Class E felony.
The hearing record before this Court indicates Defendant has a Youthful Offender/Juvenile Delinquency adjudication for Robbery in the Second Degree in the Superior Court of New Jersey- Chancery Division, Family Part- County of Union dated March 20, 2014. Defendant was placed on probation for fifteen (15) months with conditions of probation including community service and anger management training. Defendant also has two (2) pending narcotics charges in Essex County, New Jersey that are allegedly the result of narcotics sales made to a New York State Police undercover officer.
According to the People, the same New York State Police undercover police officer in the case at bar traveled to Essex County, New Jersey on three (3) occasions to complete narcotics sales during the course of the New York State Police's investigation of the Defendant with regard to the charges herein.
The Defendant's Pending New Jersey Narcotics Charges
The People seek to use under Molineux the Defendant's pending New Jersey narcotics charges in their case-in-chief as evidence of a common plan or scheme- i.e. the Defendant's crimes of heroin trafficking between New York and New Jersey- and as evidence of the Defendant's intent as to the possessory charges of heroin with intent to sell as charged in the Indictment. The People also seek to use these pending New Jersey charges under Sandoval during cross-examination, should the Defendant choose to testify, to impeach his credibility. Lastly, the People request to use these pending New Jersey charges to rebut any entrapment or agency defense if the Defendant intends to raise same.
The Defendant argues that the probative value of allowing testimony regarding Defendant's pending New Jersey charges will not outweigh the unfair prejudicial effect against the Defendant. Defendant contends that, if questioned regarding the pending New Jersey charges, it will create the impression to the jury that he is an interstate narcotics dealer and he will have no choice but to plead his Fifth Amendment right against self-incrimination. Lastly, the Defendant argues that allowing such testimony of his pending New Jersey charges will have a chilling effect on Defendant's right to testify on his own behalf.
Under Molineux , supra , the People may introduce in their case-in-chief evidence of a defendant's prior uncharged crimes or bad acts under certain circumstances. See also , People v. Ward , 141 AD3d 853 (3d Dept 2016) . These circumstances include to show motive, intent, absence of mistake, common plan or scheme, and identity, or where these acts are "inextricably interwoven" with the charged crimes, where they provide necessary background information, or where they complete a witness' narrative. Id. See also , People v. Morris , 21 NY3d 588 (Ct App 2013) ; People v. Rivera , 124 AD3d 1070 (3d Dept 2015) ; People v. Williams , 28 AD3d 1005 (3d Dept 2006) ; People v. Vails , 43 NY2d 364 (Ct App 1977) ; cf., People v. Kalina , 149 AD3d 1264 (Ct App 2017) ["With respect to the County Court's Molineux ruling, which permitted the people to offer evidence that the sexual conduct between the victim and defendant first occurred in 2002 in New Jersey, we agree that, under the particular facts of this case, these uncharged crimes did not fall within one of the recognized Molineux exceptions..."].
Evidence of prior bad acts or uncharged crimes is inadmissible, however, simply to show a propensity for crime or to assuage the defendant's character. See , People v. Fiore , 34 NY2d 81 (Ct App 1974) ; People v. Brooks , 155 AD3d 1429 (3d Dept 2017) . "Where there is a proper nonpropensity purpose, the decision whether to admit evidence of defendant's prior bad acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice." People v. Dorm , 12 NY3d 16 (Ct App 2009) .
Under Sandoval , supra , this Court may exercise its discretion to make an advance ruling as to the use by the People of the Defendant's prior convictions or proof of the prior commission of specific criminal, vicious, or immoral acts for the purposes of impeaching the Defendant's credibility should he choose to testify on his own behalf. The ruling on the admissibility of these prior convictions must balance between the probative value of prior convictions and the risk of their unfair prejudicial effect on the Defendant. Id. See also , People v. Schwartzman , 24 NY2d 241 (Ct App. 1969). This determination depends on the individual facts and circumstances of each case. Sandoval , supra . As set forth by the Court of Appeals:
As the law has developed, a criminal defendant who chooses to testify, like any other civil or criminal witness, may be cross-examined regarding prior crimes and bad acts that bear on credibility, veracity or honesty... To the extent that the prior commission of a particular crime of calculated violence or of specified vicious or immoral acts significantly reveal[s] a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society, proof thereof may be relevant to suggest his readiness to do so again on the witness stand. A demonstrated determination deliberately to further self-interest at the expense of society or in derogation of the interests of others goes to the heart of honesty and integrity...
The determination rests largely within the reviewable discretion of the trial court, to be exercised in light of the facts and circumstances of the particular case before it. A trial court may exclude such evidence entirely. It may, alternatively, limit inquiry into the mere fact that there has been a prior conviction; it may limit inquiry to the existence and nature of the prior conviction; or it may permit examination into the facts and circumstances underlying the prior conviction.
People v. Hayes , 97 NY2d 203 (Ct App 2002) (internal citations removed).
It should be noted, however, "a defendant does not, by testifying, automatically and generally waive the privilege against self-incrimination with respect to questions concerning pending unrelated criminal charges." People v. Betts , 70 NY2d 289 (Ct App 1987) . See also , People v. Carter , 50 AD3d 1318 (3d Dept 2008) and People v. Hemingway , 179 AD2d 898 (3d Dept 1992) . Such a waiver would significantly prejudice the defendant "by its potential impact on the pending criminal charge and in its actual effect on the charge being tried. It exerts an undeniable chilling effect upon a real ‘choice’ whether to testify in one's own behalf." Betts , supra . "Allowing a defendant-witness' credibility to be assailed through the use of cross-examination concerning an unrelated pending criminal charge unduly compromises the defendant's right to testify with respect to the case on trial, while simultaneously jeopardizing the correspondingly important right not to incriminate oneself as to the pending matter." Id. See also , People v. Smith , 87 NY2d 715 (Ct App 1996) . As such, the rule as set forth in Betts , supra , and its progeny is well-settled in that the cross-examination of a defendant on an unrelated criminal charge for the sole purpose of impeaching the defendant's credibility is impermissible. See also , People v. Bennett , 79 NY2d 464 (Ct App 1992) and People v. Cantave , 21 NY3d 374 (Ct App 2013) .
In the case at bar, the New Jersey narcotics sales are part and parcel of the Defendant's Indictment herein. In fact, the underlying narcotics sales that took place in New Jersey between the Defendant and the New York State Police undercover police officer are included as overt acts in furtherance of the conspiracy charge within the Indictment. The pending New Jersey charges arose from the same series of transactions between the Defendant and the undercover police officer from the New York State Police for the sale of narcotics that gave rise to the crimes charged under this Indictment. As such, these transactions are "inextricably interwoven" with the charged crimes.
Count Seven of the Defendant's Indictment specifically states "As part of the conspiracy co-conspirator DAVANTE ROBINSON, aka "Benji", between the approximate periods of September 11, 2017-September 18, 2017, in the County of Sullivan and the State of New Jersey did obtain amounts of narcotics and did distribute quantities of heroin to others..."
Further, these transactions in New Jersey clearly show a common plan or scheme between the Defendant and the New York State Police undercover police officer. The People submit that the Defendant and his Co-Defendant herein made multiple narcotics sales to the same New York State Police undercover police officer on several dates over to course of three (3) months in 2017. These transactions in New Jersey further show the intent of the Defendant to engage in selling large quantities of heroin in New York from New Jersey, and that he possessed those narcotics in New York with the intent to sell them to the undercover police officer. Therefore, such testimony falls under the well-established Molineux exceptions and can be used by the People in their case-in-chief for purposes other than to show Defendant's propensity to commit crimes or to simply attack the Defendant's character.
Counts One through Four of Defendant's Indictment charge him with Criminal Sale of a Controlled Substance. Counts Five and Six of Defendant's Indictment charge him with Criminal Possession of a Controlled Substance.
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However, the prejudice against the Defendant would be too great if any questioning of the Defendant regarding the pending New Jersey charges was allowed during cross-examination simply to impeach his credibility should he choose to testify. Not only would allowing such questioning have a substantial chilling effect on the Defendant's right to testify on his own behalf, but the Defendant would have little to no choice but to assert his Fifth Amendment privilege to protect himself against self-incrimination at the risk of tainting the jury's opinion of his testimony about the charges herein. The People are therefore prohibited from cross-examining the Defendant regarding these pending New Jersey charges in order to impeach the Defendant's credibility.
It is important to note that the prohibition under Betts , supra , does not preclude the People from inquiry into and from proving these pending New Jersey sales during cross-examination should the Defendant testify on his own behalf and make assertions that "open the door" and render those charges relevant for contradiction and response. Betts , supra . In People v. Blakeney , 88 NY2d 1011 (Ct App 1996) , the Court of Appeals held that Defendant's claim that he had never seen or known his co-defendant before his arrest for selling crack cocaine with her opened the door to evidence tending to disprove his account and rendered prosecution's questions regarding defendant's subsequent arrest for nearly identical crime with the same co-defendant relevant for contradiction and response to existence of their relationship at time of initial arrest and not simply evidence used to impeach the defendant's general credibility. As such, when the defendant or a defense's witness testifies to facts that are in conflict with the precluded evidence, the defense "opens the door" on that issue in question and the defendant or witness is then properly subjected to impeachment by the prosecution's use of evidence that has otherwise been precluded. People v. Fardan , 82 NY2d 638 (Ct App 1993) ; People v. Brown , 252 AD2d 598 (3d Dept 1998) ; Jackson v. Lee , 2010 WL 4628013 (SDNY 2010) .
The Defendant's Youthful Offender/Juvenile Delinquency Adjudication
As to Defendant's Youthful Offender/Juvenile Delinquency adjudication of Robbery in the Second Degree, the People do not seek to offer the adjudication itself but only the facts and circumstances underlying same for impeaching the Defendant's credibility should he choose to testify. Defendant, however, claims that his Youthful Offender/Juvenile Delinquency adjudication or the facts and circumstances underlying same cannot be brought out in any manner because it is not a conviction per se. The Defendant further argues that the probative value of allowing testimony regarding does not outweigh the unfair prejudicial effect against the Defendant. Lastly, the Defendant argues that allowing such testimony of his Youthful Offender/Juvenile Delinquency adjudication will have a chilling effect on Defendant's right to testify on his own behalf if the jury is allowed to hear the facts of his violent Robbery adjudication.
With regard to the Defendant's Youthful Offender/Juvenile Delinquency adjudication, it is well settled that it is impermissible to use a youthful offender or juvenile delinquency adjudications to impeach the credibility of a defendant. People v. Gray , 84 NY2d 709 (Ct App 1995) ; People v. Greer , 42 NY2d 170 (Ct App 1977) ; People v. Cook , 37 NY2d 591 (Ct App 1975) ; People v. Jackson , 128 AD3d 1181 (3d Dept 2015) , affirmed, 29 NY3d 18 (Ct App 2017) . The underlying illegal or immoral acts that constituted the basis for the youthful offender or juvenile delinquency adjudications, however, may be inquired into during cross-examination for the purposes of impeachment. Id. See also , Gray , supra ; Cook , supra ; People v. Evans , 17 AD3d 861 (3d Dept 2005) ; People v. Harris , 304 AD2d 848 (3d Dept 2003) . This is particularly relevant, as in the case at bar, when the adjudications are theft-related, as these are acts involving dishonesty that relate directly to a defendant's credibility as a witness, and they show a willingness to place his own interests over those of society. People v. Gilliam , 36 AD3d 1151 (3d Dept 2007) ; People v. Humphrey , 15 AD3d 683 (3d Dept 2005) ; People v. Tarver , 292 AD2d 110 (3d Dept 2002) ; People v. Chaney , 163 AD2d 617 (3d Dept 1990) .
In the case at bar, Defendant has a Youthful Offender/Juvenile Delinquency adjudication out of the State of New Jersey for Robbery in the Second Degree. Although the People shall not be allowed to use the Youthful Offender/Juvenile Delinquency adjudication itself to impeach the credibility of the Defendant should he choose to testify, the People may use the facts and circumstances of the robbery underlying the Defendant's Youthful Offender/Juvenile Delinquency adjudication to impeach the credibility of the Defendant. Robbery is a theft-related crime of dishonesty that reflects directly on the Defendant's credibility as a witness and demonstrates his willingness to put his own self-interests over the interests of society.
There must be judicial balance between the probative value of Defendant's criminal history on Defendant's credibility and his willingness to put his self-interests ahead of society, and the risk of unfair prejudice against Defendant and the chilling effect on his willingness to testify on his own behalf should such inquiry be allowed. This Court must also consider the People's right to a fair cross-examination of the Defendant's credibility as a witness. It is this Court's determination that the compromises made herein provide a fair and reasonable balance of the relevant factors.
Based upon the foregoing, it is hereby
ORDERED , that Defendant's request pursuant to People v. Sandoval and People v. Ventimiglia is granted to the extent outlined herein; and it is further
ORDERED , that the People's request pursuant to People v. Molineux is granted to the extent outlined herein.
This constitutes the Decision and Order of this Court