People v. Nickle

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PERRY NICKLE, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 21, 1979

70 A.D.2d 646 (N.Y. App. Div. 1979)

Opinion

May 21, 1979

Appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered May 19, 1976, convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. No opinion. Suozzi, Shapiro and Cohalan, JJ., concur.

Titone, J.P., dissents and votes to reverse the judgment and order a new trial, with the following memorandum:

At trial the undercover officer testified that when he met the defendant, the defendant initially did not recognize him, but later remembered their prior acquaintance stating, "Look man, the reason why I didn't remember you is I sell so much dope to so many people, I don't remember everybody. I don't sell to nobody I don't know." This testimony was unnecessary to the narration of the drug transaction, which occurred the following day, and without the defendant being present. It was calculated to encourage the jury to convict the defendant, not on the basis of guilt beyond a reasonable doubt, but for generalized crimes against society (People v. McMillan, 65 A.D.2d 776).