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Tape recordings are key…cont

In one case this court held, with respect to a similar reference to the defendant by a police witness, that his response “that the purpose of the operation was ‘to lead us into high heroin and cocaine dealers, the upper echelon the target of the operation, improperly implied that he was ‘upper echelon’.” The degree of suggestion of guilt by association in the instant matter is no less prejudicial. This attempt on the part of the prosecutor to impress upon the jurors that the defendant was a constant drug law violator with a propensity to deal in narcotics elicited the following testimony on his direct case to the effect that defendant was engaged in two other criminal transactions which were not alleged in the indictment.

Evidence of such uncharged crimes was introduced solely for the purpose of establishing a criminal propensity to commit such offenses. It was legally irrelevant and inadmissible and constituted improper evidence which profoundly suggested the defendant’s guilt.

Although certain tape recordings involving this transaction had previously been suppressed by the court for the reason that they were of such poor quality as to be incomprehensible, the prosecuting attorney, at the outset of the trial, elicited from the Sergeant. He also testified that by this device it was possible to obtain sound signals from a hidden transmitter carried on the person of the undercover officer. It was most inappropriate to bring all of this information to the attention of the jury when it was then known to the prosecution that the tape recordings could not be used at the trial. Such information could only serve the purpose, as a contrived trapping, of improperly leading the jurors to believe that tapes were in existence which could substantiate the prosecution’s witnesses, whereas, in fact, no such tapes were available as evidence in this case. This impropriety was further amplified when the court likewise proceeded to question the witness concerning the operation of this device which precipitated the following sidebar colloquy between the District Attorney and the court.

The highly prejudicial and indelible effect of these several improprieties upon the jurors’ fact-finding function was such that, notwithstanding the trial court’s attempted curative instructions which followed objections to the May 3 reference to an uncharged crime and to the Sergeant’s description of the premises on Washington Avenue as a “target of the investigation” as one of two “main distribution points for heroin possession” to which reference was made above, the defendant was effectively deprived of a fair trial.

“Criminal trials are to be so conducted that the proof will be legal evidence, unimpaired by intemperate conduct, impertinent counsel and irrelevant asides, all of which obfuscate the development of factual issues and sidetrack the jury from its basic mission of determining the facts relevant to guilt or innocence. Although every trial may not be impeccably conducted and free of some error, we will not tolerate trials where unadulterated unfairness and deceit have become the rule. Even-handed justice requires more and, as the ultimate guardian of the rights of the People and defendants in the State, we have a right to expect more.”
Upon application of the foregoing rules, the defendant received less than what may be considered a fair trial. The judgment should be reversed and a new trial ordered.

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