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Tape recordings are key


A Kings Criminal Lawyer said that, this is an appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 14, 1978, convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and imposing sentence.

A Kings Sex Crimes Lawyer said that, in the circumstances of this case, the defendant was not deprived of a fair trial by the references to 696 Washington Avenue as a “main distribution point” for heroin and the undercover officer’s statement that he “went back to purchase some more narcotics.” Both statements were the subject of objections followed by curative instructions, after which no further objection or motion for a mistrial was made. Thus, the court “must be deemed to have corrected the error to the defendant’s satisfaction”. As to the third claim of error testimony that a second man entered the building, gave the defendant money and requested “halves” not only was there no objection to the testimony but on cross-examination defendant deliberately elicited a repetition of the testimony concerning the second man and used it in summation to imply that the undercover officer was confused as to who had actually sold him the heroin. Thus, there is no reason to invoke interest of justice analysis to reach this particular issue.

The issue in this case is whether the record demonstrates the existence of such prejudice as to have effectively denied the defendant a fair trial.

Reversal is sought on numerous grounds. The court believes that testimony was received at this trial which tended to create, in the jurors’ minds, the impression of the defendant’s guilt by improper suggestions of criminality by association and references to the commission of other sex crimes by him not the subject matter of the instant indictment, and, for these reasons, the judgment should be reversed.

In attempting to elicit introductory background evidence pertaining to the police preparations in effecting the defendant’s arrest for the offense which ultimately resulted in the subject indictment, the prosecuting attorney obtained from the Sergeant a description of the premises with which the appellant was repeatedly associated during the trial as follows: “696 Washington Avenue had been a location which was a target of the investigation from its inception. That location in addition to two others were the main distribution points for heroin in that area.”

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.

Are involved in a criminal case? Seek the representation of a Kings Criminal Attorney and Kings Sex Crime Attorney at Stephen Bilkis and Associates in order to defend your day in court. Call us for free consultation.

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