Opinion
Decided September 19, 1991
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Frank J. Blangiardo, J.
Philip L. Weinstein for appellant.
Robert M. Morgenthau, District Attorney (Susan H. Odessky of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed. The Appellate Division determined that the prosecutor's cross-examination of defense witnesses did not exceed the bounds of discretion and was not error. It also concluded that the prosecutor's summation did not deprive defendant of a fair trial. Finally, it found unpreserved the issue involving a missing witness instruction to the jury. On this record, this Court has no basis as a matter of law on which to disturb the Appellate Division's resolution of the first two claims and cannot review the unpreserved third issue.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, HANCOCK, JR., and BELLACOSA concur; Judge TITONE dissents and votes to reverse in an opinion.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.
Although defendant was charged with a single count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), at his trial, the prosecution, over numerous objections, was permitted to elicit extensive testimony which ultimately linked defendant to a large scale drug selling enterprise. The introduction of this highly prejudicial evidence clearly acted to deprive defendant of a fair trial (see, People v Alvino, 71 N.Y.2d 233; People v Crandall, 67 N.Y.2d 111; People v Molineux, 168 N.Y. 264). The Appellate Division majority's conclusion that this evidence was merely "confirmatory" of testimony already introduced into the case by defense counsel ( 172 A.D.2d 173, 174-175) is simply not supported by the record. An examination of the trial transcript indicates that the testimony elicited by the prosecution went far beyond that which was brought out by defense counsel, and improperly created the impression that defendant was an active participant in an ongoing drug trafficking operation. Accordingly, I dissent.