Summary
In Cheatham, the defendant was on trial for drug charges and evidence of his relatives' drug use and possession was admitted at trial without any limiting instructions.
Summary of this case from Yapor v. MazzucaOpinion
February 2, 1990
Appeal from the Niagara County Court, DiFlorio, J.
Present — Dillon, P.J., Denman, Green, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant was charged in two separate indictments. The first alleged one count each of sale and possession of cocaine arising from a sale to an undercover officer on April 25, 1987. The second charged the same offenses arising from a sale to an undercover officer on June 3, 1986. The defendant was convicted of only the possession count under the first indictment but was convicted as charged under the second indictment.
Defendant, who had no prior criminal record, testified at trial and denied commission of each of the crimes. On cross-examination he was questioned extensively about drug use and drug transactions by several members of his family. Specifically, defendant was questioned about his father's possession and daily use of cocaine, and his observations of a cousin wrapping and packaging cocaine. Defendant was also asked if he ever saw his brother and uncles in possession of cocaine, and whether he witnessed sales of cocaine by them to an undercover officer. Much of the cross-examination proceeded without objection, but before the prosecutor concluded this line of questioning, counsel objected on the basis that the prosecutor was "going far afield * * * and attempting to slander the entire name so as to prejudice this particular defendant." The court called a recess without expressly ruling on the objection but when testimony resumed, the prosecutor continued to inquire of defendant about cocaine transactions conducted by family members. Counsel's further objection was overruled.
Defendant contends, inter alia, that it was error to permit the prosecutor to cross-examine him on the subject of drug use and drug-related activity by members of his family. We agree, and we reject the People's argument that the issue is not preserved for review. Defendant's protest to the prosecutor's line of inquiry provided the court with an opportunity to rule properly upon the objection and to give the jury appropriate curative instructions. We conclude, therefore, that the issue is preserved for review (see, CPL 470.05; People v Butchino, 141 A.D.2d 986; People v Brannon, 58 A.D.2d 34).
Addressing the merits, we find that the error in permitting the jury to consider the criminal conduct of members of defendant's family in assessing defendant's guilt or innocence is so egregious that defendant was deprived of a fair trial (see, CPL 470.15). Defendant was not involved as a participant in the events about which he was cross-examined, and the evidence was highly prejudicial and of no probative value. A reversal is required.
Defendant also contends that the court erred in permitting the prosecutor to cross-examine him on the subject of prior drug sales allegedly made by him. He argues that the prejudicial impact of the evidence outweighed its probative value on the subject of credibility (see, People v Sandoval, 34 N.Y.2d 371, 376). It is generally recognized that we should not disturb the discretionary rulings of a Trial Judge in the absence of "plain abuse and injustice" (La Beau v People, 34 N.Y. 223, 230; see, People v Duffy, 36 N.Y.2d 258, 263, cert denied 423 U.S. 861; People v Sorge, 301 N.Y. 198, 202). It is also well settled, however, that cross-examination of a defendant on prior bad acts will not be permitted when the obvious intent is to show from character or experience a propensity to commit the crime for which defendant is on trial (People v Duffy, supra; People v Schwartzman, 24 N.Y.2d 241, cert denied 396 U.S. 846). Here, the cross-examination concerning prior uncharged sales of cocaine to three individuals must be evaluated in relation to the abundance of irrelevant and highly prejudicial evidence of drugs sales and drug-related activity by members of defendant's family. Thus viewed, it is manifest that the purpose of the cross-examination was to prove that defendant was guilty of the crimes charged because he was a drug dealer and a member of a family of drug dealers and drug users. The prejudice to defendant obviously was disproportionate to the probative value of the cross-examination (see, People v Sandoval, supra).
We have reviewed defendant's other claims of error and find them to be without merit.