Opinion
12-2019
09-09-2019
The PEOPLE of the State of New York, Plaintiff, v. Jason PERULLI, Defendant
Hon. James Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, NY 12701 ADA Meagan K. Galligan, Attorney for the People, Meagan.Galligan@co.sullivan.ny.us
Hon. James Farrell, Sullivan County District Attorney, 414 Broadway, Monticello, NY 12701
ADA Meagan K. Galligan, Attorney for the People, Meagan.Galligan@co.sullivan.ny.us
Frank J. LaBuda, J.
Issue:
In the case at trial, the Defendant's uncharged wife, Latoya Perulli, consented to a police search of the residence following a traffic stop of the Defendant. The Defendant subsequently confessed to possessing the narcotics recovered from the trailer he shared with her and their two children. Prosecution now asks this Court, pursuant to this Court's prior limited Molineux ruling, to allow evidence of Defendant's prior drug possession and Parole. The Prosecutor says that the Defendant has "opened the door" by presenting in Counsel's Opening Statement, that the drugs were not his, and were his wife's, and by presenting a room at a nearby hotel that he used as his Parole address in claiming he temporarily resided elsewhere at the time the narcotics were seized from the residence. The issue now presented is to what extent has the Defendant "opened the door" and allowed the proverbial horse out of the barn.
And recanted in part when he was advised by the interviewing detectives of the approximate A-Felony weight of the heroin and cocaine that was found in the residence.
Procedural Status:
This Court prior to Jury selection following a Molineux hearing and issued a limited ruling permitting the People to elicit testimony and submit evidence regarding certain aspects of the Defendant's conviction for possession of drugs and his Parole history to establish the People's theory of "Constructive" possession of a quantity of heroin and cocaine found under the bed in the Defendant's wife's residence, at the time that the residence was searched pursuant to the consent of the Defendant's wife, who was not arrested nor charged as an unindicted co-defendant or accomplice, if the Defendant "opened the door" .
Court's Molineux decision dated August 27, 2019 Appendix I.
Thus, prior to Jury selection, and opening statements, this Court specifically ruled that the defendant's prior conviction for criminal possession of a controlled substance would be admissible as relevant and probative to the issue of whether he possessed by exercising dominion and control of the narcotics and his intent to sell in question, if Defendant argues that his wife possessed the narcotics and not he, thereby "opening the door" to his prior drug possession conviction and his Parole status. Similarly, under these circumstances "of opening the door" the Prosecutor may then present evidence of the previously redacted portions of the Defendant's statements to the Police to show his intent, knowledge and dominion and control of the narcotics found at the residence.
CPCS3rd (PL § 220.16 (12), B Felony by weight and sentenced on October 21, 2010 before this Court to 8½ years in prison plus three years post release supervision pursuant to a plea bargain.
In rendering the limited ruling this court cited the Court of Appeals in People v. Alvino, 71 NY2d 233[1987] which addressed the issue of uncharged criminal conduct, and reiterated the rules concerning the admission of uncharged crimes into evidence (See also People v. Ingram, 71 NY2d 474 ). In People v. Alvino (71 NY2d 233 , supra ) the defendant was charged with violating Penal Law 220.16 Possession with intent to sell, based upon his physical possession of cocaine at the time of his arrest. The Court of Appeals noted, as in the case at bar, that proof of intent to sell is a required element of that crime ( Penal Law 220.16 ), and the mere fact of possession of the quantity involved did not clearly indicate whether defendant held the drugs for sale or for personal use, thus the evidence of the prior unproven sale to the informant was legally admissible to establish the element of intent.
The Defense now moves to reargue the limited Molineux ruling with a belated proffer of People v. Leonard 29 NY3d 1 [2017 Court of Appeals] .
In People v. Leonard ( 29 NY3d 1 [2017 Court of Appeals] , supra ) the Defendant was convicted of sexual abuse in the first degree and unlawfully dealing with a child in the first degree for serving alcohol to an underage relative and then sexually abusing her while she was intoxicated. Prior to the trial in Leonard , the Prosecution filed a "Molineux Proffer" seeking to elicit testimony regarding an alleged 2005 sexual abuse incident involving the same victim with a similar fact pattern. The Prosecution argued that this evidence was relevant to show intent, background, and his plan to abuse his underage relative.
Over the Defendant's objection, in People v. Leonard , ( 29 NY3d 1 [2017 Court of Appeals] , supra ) the trial court allowed the Prosecution to elicit testimony regarding an uncharged 2005 incident in their direct case without specifying for which Molineux purpose the evidence was admissible, nor did the trial court weigh the probative value of the evidence against the potential prejudice to the Defendant, nor did the trial court give a limiting instruction to the Jury. The Court of Appeals reversed stating:
"The trial court erred in permitting the People to introduce testimony from the victim about a prior incident in which the Defendant allegedly sexually assaulted her in a similar manner, because the evidence was not permissible for the People's proffered Molineux purposes and, to the extent it was probative for a limited purpose, the prejudicial nature of that evidence far outweighed any probative value."
In reversing the lower Court, the Court of Appeals held that the introduction of the testimony of the Defendant's prior alleged sexual assault was more prejudicial than probative because such testimony was not necessary to show either "intent" or "the necessary background evidence of the relationship between the Defendant and the victim" as both these elements were self-evident from the trial testimony and the act itself. In the case at bar, the evidence of the narcotics and its location of the narcotics is not self-evident of the Defendant's intent, knowledge or dominion and control of the cocaine and heroin, and is not self-evident of the Defendant's intent to sell.
People v. Leonard ( 29 NY3d 1 [2017 Court of Appeals], supra ) can also be distinguished from the case at bar in that this court issued a limited Molineux ruling, contingent upon the Defendant "opening the door" at trial. The Leonard trial court did not. In allowing the admission of this defendant's prior narcotic criminal history and Parole in its decision this court stated
"the defendant's prior conviction to possess and sell drugs would be relevant and probative to the issue of whether he possessed the drugs in question. When the Defendant argues that his wife possessed the narcotics, and not he, he opens the door to his prior history regarding his former drug possession convictions [emphasis added] (Court's decision dated August 27th, 2019 is annexed hereto as Appendix I )."
The case at bar is also distinguishable from Leonard ( 29 NY3d 1 [2017 Court of Appeals], supra ) in procedure. In the first instance, this Court has carefully engaged in the required two-part balancing analysis with respect to the relevance and proper purpose of the Prosecution's proffered evidence, and the probative versus prejudicial value thereof and issued a limited ruling. The Leonard trial court did not.
Furthermore, the appellate court cases citing Leonard distinguish the Leonard holding and determine that either no error, or at most, harmless error was occasioned by the Molineux ruling. For example, in People v. Palin, 158 AD3d 936 [3d Dept. 2018] , the Appellate Division, affirmed a lower court Molineux ruling involving "Constructive" possession of marijuana and upheld the lower court's Molineux ruling "which permitted testimony about [an] uncharged and un-litigated controlled buy for the purposes of demonstrating knowledge of the possession of the marijuana seized in the residence and allowed the People to inquire at trial about two prior drug-related felony convictions."
The case at bar is further distinguishable from People v. Leonard 29 NY3d 1 [2017 Court of Appeals] since the proffered evidence of this Defendant's narcotic criminal history is not "unresolved charges", since the Defendant's narcotics activity and Parole are established by his uncontested criminal conviction (See People v. Mccommons, 143 AD3d 578, [3d Dept. 2016] ).
Defendant pled guilty to Criminal Possession of a Controlled Substance charges in this Court, October 2nd, 2010 and consented to 8½ to 3 years post release supervision. That part of the conviction involving an illegal firearm is not proffered by the Prosecution.
Here, the defendant Counsel's Opening Statement at trial is attempting to lay blame at the feet of his now deceased wife for the narcotics. It then becomes necessary to provide context for the charged drug possession and to complete the narrative so that there are no confusing gaps or latent ambiguities in the storyline presented to the jury by the Prosecution. Unlike People v. Leonard ( 29 NY3d 1 [2017 Court of Appeals] , supra ) wherein the testimony of the alleged prior sexual acts was not needed to prove intent (the intent could be inferred from the commission of the sexual act itself), because the quantity of drugs seized does not itself show the Defendant's intent or knowledge. The Defendant's prior criminal history of drug possession and Parole is probative of the Defendant's intent regarding the knowledge and dominion and control of the seized narcotics. And unlike People v. Leonard ( 29 NY3d 1 [2017 Court of Appeals] , supra ) in which the victim's testimony that the defendant had previously sexually assaulted her tended to show that the defendant had committed the charged crime simply because he had done it before, this Defendant has now "opened the door" to the admissibility of his prior drug history with Counsel arguing that the Defendant did not possess the narcotics and lived separate and apart in a hotel room as per his Parole address and alleging that it was his deceased wife and not he who was in possession of the narcotics found at the residence.
Lotoya Perulli died after the Indictment (and no one has proffered a cause of death).
The Court of Appeals addressed a similar issue in People v. Satiro, 72 NY2d 821 [1988] . Where the Defendant was convicted after a jury trial of criminal possession of a controlled substance in the first degree. The evidence at trial disclosed 9.47 ounces of cocaine and an incriminating blue notebook in defendant's handwriting recording cocaine sales were seized in Defendant's family home while the Defendant was in Aruba at the time the room was searched, and a codefendant was in the room at his family's home in New York. Defendant argued that the trial court committed reversable error by allowing the notebook into evidence because Defendant was not charged with intent to sell nor with a criminal sale of a controlled substance.
In People v. Satiro (72 NY2d 821 [1988], supra ), Defendant's central contention, as here, was that he did not occupy the room where the drugs were found, and he did not exercise dominion and control over the contraband and did not possess it nor intend to sell.
In upholding the lower court's ruling, the Court of Appeals in People v.Satiro (72 NY2d 821 [1988] , supra) stated:
"We have held that a trial court, in the exercise of its discretion and with a proper limiting instruction to the jury, may allow "[evidence]" of prior uncharged crimes [to] be received, if it helps to establish some element of the crime under consideration" ( People v. Alvino, 71 NY2d 233, 241 )." The Court of Appeals went on to say that the blue notebook was relevant to show that defendant exercised dominion and control over the drugs, even though he was out of the country at the time of the search and others had access to the room and to refute the Defendant's contention that he did not occupy the room where the contraband was found.
The Defendant's previous conviction for possession of drugs in the case at bar is necessary to defeat his "central contention" that he did not know of or possess the narcotics seized at the residence. Counsel's Opening Statement to the Jury makes clear that the Defendant's central contention is, as the Prosecution infers, to offer the defense that he did not occupy the room where the narcotics were found and therefore did not possess nor exercise dominion and control over it. In Counsel's Opening Statement before the Jury, Counsel stated the following:
"There was a box underneath the bed, underneath a bed that Mr. Perulli presumably slept in now and then, but you're also going to learn that Mr. Perulli said I don't always stay here I stay at the Liberty Motel .
Admittedly the Defendant's Parole Address.
We fight. I come here, I live at the Liberty Motel and lo and behold what do the police find? They find a key to a room at the Liberty Motel. Dominion and Control, ladies and gentlemen, there are items that people have [in] their house that they share with people. Some are joint, open, out in the air and we all—yes, the remote to the TV. The TV itself. But in some homes, people have possessions and they put them in places that may not be that obvious and that the cohabitants of that house may not know about which would especially be the case if that cohabitant isn't there every day and splits his time between two locations."
Counsel further stated:
"Perulli is sitting there [during the Police interview] quietly and then you can hear, so quietly, almost under his breath, what sounds to me when I hear the tape — and you'll be the judge of that — and excuse my language again, "That fucking bitch." Now that sounds to me like somebody who just found out that his wife has been engaging in some serious activity for which he's about to take the fall willingly." (referring to the "redacted" video of the Defendant's admission after the Huntley Hearing.)
The Defendant's claims that he did not possess the narcotics found at the residence and resided at his Parole address, the Defendant's prior conviction of narcotics and Parole are admissibly probative, and will, with the appropriate cautionary instruction to the jury, outweigh the prejudicial effect of his prior criminal history. Since the Defendant's intent, knowledge, possession and dominion and control were put into issue by Counsel's assertion that the Defendant did not live at the marital residence, and did not possess the narcotics nor have knowledge of the quantity present therein, nor did he intend to sell, it is a proper exercise of judicial discretion to allow testimony concerning the Defendant's criminal possession history for the limited purpose of establishing that the Defendant possessed the narcotics; that he exercised dominion and control over them and that he intended to sell them. (See People v. Satiro , supra )
In People v. Price, 14 AD3d 718 [2005 Appellate Division] Defendant sought review of the judgment of the Supreme Court, Queens County (New York), which was entered on a jury verdict convicting him of criminal possession of a controlled substance in the first degree. Defendant challenged the sufficiency of the evidence to support his conviction. The Appellate Division held that the evidence was legally sufficient to establish defendant's guilt. The court determined that, while defendant was not in actual possession of the narcotics, the testimony established that he had constructive possession of the cocaine recovered from his residence. Further, the court found that evidence of defendant's drug operation was properly admitted into evidence to establish defendant's knowledge of and exercise of dominion and control over the cocaine recovered.
It is important to note that this Court intends to limit the potential for undue prejudice by instructing the Jury during the People's case in chief not to infer that this Defendant has any propensity for criminality based upon the fact that he was involved with possession of a controlled substance previously, but rather that such testimony is being offered only for consideration of the sole issue of whether the Defendant knowingly possessed the narcotics found at his marital residence; IE, had constructive possession and possessed the narcotics with intent to sell (See Appendix II ).
The Defendants application for re-argument under People v. Leonard ( 29 NY3d 1 [2017 Court of Appeals] supra ) is denied. The People's application that the Defense has now "opened the door" for permitting evidence of the Defendant's Parole residence and prior criminal history is granted pursuant to the Court's decision as consistent therein. The Court will sua sponte give the Jury a preliminary Molineux limitation prior to this testimony.
This shall constitute the Decision and Order of this Court.