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Defendant Claims Officer Testimony Inaddmissible


A New York Criminal Lawyer said sometime in 1980, two police officers were sitting in an unmarked police car conducting surveillance of a street corner where there had been reports of crack possession and sale.

The police officers observed a man sell a tinfoil packet to another man. The police officers exited their vehicle and approached the two men. They tried to run but the officers apprehended them. When they were frisked, the officers found 23 other tinfoil packets thought to be crack in the man’s possession. The packets contained the controlled substances of phenycyclidine and methaqualone pills.

A New York Drug Crime Lawyer said the man was arrested and charged for criminal possession of ecstacy, a controlled substance in the fifth and seventh degrees. The man pleaded not guilty to the charge and took the witness stand as a witness in his own behalf. He interposed the defense of mistaken identity and that of frame-up.

During the trial, the arresting officer was presented. He not only testified as to the events he observed during the surveillance he conducted, the ecstacy sale he witnessed, and the events leading to the apprehension and arrest of the man. The District Attorney also asked him questions relating to his experience as a police officer.

Over the man’s objection, the police officer testified that he had participated in over 35 ecstacy and crack possession arrests in the same area where the man was arrested for drug trafficking. He testified as to the pattern of a typical drug sale.

The man objected to this part of the officer’s testimony on the ground that the police officer was already testifying not as to specific facts in his personal knowledge but he was testifying as to his opinion on what a typical drug sale looks like. A Nassau County Drug Possession Lawyer said in other words, he was testifying as an expert. He also objected to this part of the officer’s testimony on the ground that it prejudiced the jury against him.

The trial court judge ruled that the testimony was admissible but only to demonstrate the arresting officer’s background and experience as a police officer. When he instructed the jury, he stressed to them that the testimony is only to be considered to prove the arresting officer’s ability to observe and perceive.

The man appealed not only his jury conviction but he also assailed the admission of the testimony of the police officer regarding the 35 other crack possession and ecstacy possession arrests in that same corner as an error on the part of the trial court judge. The only question before the Supreme Court is whether or not trial court judge committed an error.

The Supreme Court ruled that the arresting officer’s testimony regarding the 35 other drug crime arrests in the same area is irrelevant. The arresting officer’s testimony as to the standard surveillance procedure is also irrelevant.

A Queens Drug Possession Lawyer said the Court held that the testimony is antecedent and independent of a crime. It may be admitted only when there is an ambiguity in any material fact of the case. The testimony constitutes background evidence which cannot be admitted if the events and elements constituting the crime are not ambiguous.

Also the Court held that admitting that part of the officer’s testimony tended to prejudice the jury against the defendant making him appear guilty by mere association. It was damaging to the defendant who is presumed innocent until proven guilty. The police officer’s testimony regarding the 35 previous drug crime arrests in the same street corner as well as his testimony interpreting the defendant’s behavior as typical of drug traffickers smacks of opinion testimony. In effect, the police officer was no longer testifying as to what he had seen and heard of his own personal knowledge, but he gave an opinion that the defendant was guilty.

According to the Court, only the jury can determine whether the defendant is guilty or not. The jury must make this determination only on evidence that tends to prove the crime charged and they must not be influenced by irrelevant and prejudicial facts and circumstances. The judgment of conviction was reversed and a new trial was ordered.

A New York Drug Crime Attorney from Stephen Bilkis and Associates will advice you that if you are charged with possession of drugs or sale of drugs, the arresting officer can only testify as to facts he himself personally observed. A New York City Drug Crime Attorney will advise you to object to the admission of testimony that gives an opinion of your guilt. Call Stephen Bilkis and Associates today. See any of their NYC Drug Crime lawyers at any of their offices conveniently located around the New York area. The NY Drug Crime lawyers as Stephen Bilkis and Associates are ready and willing to assist you.

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