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Defendant Claims Bringing Up Prior Acts Prejudiced Jury


Drug Possession crimes are a problem in every city in the United States, but courts do not usually expect to find them on their own back doorsteps. In the case of the Supreme Court of Bronx County in 1972, they did not expect to find the drug problem on the very steps of the courthouse. However, that is exactly what transpired in September of 1972. An undercover narcotics team was working a case involving a drug ring that was operating out of Franz Segal Park just around the corner from the Bronx County Supreme Court building. The narcotics undercover team made three different purchases of narcotics from the dealer on September 8, 11, and 12.

The undercover officer would meet with the dealer in Franz Park, make the purchase, and then return to the team with the cocaine. The narcotic would be tested to ensure that it was cocaine. The undercover officer was wearing a wire so that the transaction was tape recorded. However, there was no video at the time that was effective in the field. Following the third purchase, the defendant was arrested for trafficking in narcotics. In his trial, he testified that he was not a drug dealer and that he had never sold anyone any drugs. The undercover team had to testify that they had not witnessed the transactions and had only seen the undercover officer leave with the money and come back with the cocaine (cocaine possession).

Interestingly, at trial the prosecutor questioned the officer extensively about the purchases that he made from the defendant in Franz Park. He went in to great detail to show that the time and place of the transaction for which the defendant was charged was identical to the time and place in which he had previously been arrested for dealing drugs. The problem with this line of questioning was that according to the law, prior offenses can only be brought up in trial to show the credibility of the witness. A prosecutor may not use questioning on previous acts to show a propensity to commit the crime that the defendant is on trial. That policy is set forth in People v. Schwartzman, Supra, 24 N.Y.2d p. 247, 299 N.Y.S. 2d p. 822, 247 N.E.2d p. 645. The crimes for which the prosecutor was referring were the two prior drug deals that were under indictment, yet not adjudicated by the time of the trial in question.

The defendant was convicted and appealed his conviction based on the impropriety of the prosecutor to bring up the prior acts with the clear intent of using them to prejudice the jury. The Supreme Court evaluated the case and agreed with the defendant. While it is acceptable to use prior acts to test the defendant’s credibility, it was clearly not the case in this trial. The fact that the prosecutor use such specific questions as to establish that the time of day and location of the sales were not only similar, but were in fact the exact same, could serve no other purpose than to prejudice the jury. The fact that the other two cases had not even been adjudicated made the situation even worse. He was being assumed guilty of two prior offenses that he had not even been found guilty of committing at the time of the present trial.

It is the intent of the American judicial system to ensure that each defendant is considered innocent until proven guilty. It is for that reason that prior acts are not presented at trial. It is not appropriate to use the propensity of a person to commit similar crimes to make the inference that he must be guilty of a different one. Each person and each crime must be tried on its own merit without prejudice. The case was overturned and a new trial was ordered.

At Stephen Bilkis & Associates, New York criminal attorneys can help review the circumstances of your arrest, whether it is from drugs, robbery or sex crimes. We have convenient offices throughout New York and the Metropolitan area. A New York drug crime lawyer can review your case and provide advice for an appropriate defense.

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