A man appealed from a decision of the Supreme Court from convicting him drug possession and criminal sale of a controlled substance in the third degree upon a jury decision, and imposing a sentence. A revised decision of the same court revoked a sentence of probation previously imposed by the same court upon finding that he had violated a condition and imposing a sentence of imprisonment upon his previous conviction of attempted criminal sale of a controlled substance in the third degree.
The accused man evidently sold a packet of cocaine to an undercover police officer. The undercover officer called the description of the seller to his backup team however the police were unable to locate the seller at that time. After three days, while observing the area from a rooftop, the undercover officer saw the man walking down the street. He called his backup team, and the man was arrested in a nearby restaurant. The undercover officer subsequently identified the man as the person of cocaine possession and sold him the controlled substance. No drugs or prerecorded buy money were found on the accused man. At the trial, the man’s wife testified that he was with her in their apartment the entire evening of the date of the transaction.
On appeal, the accused man contends that the questioning of his alibi witness and comments on summation deprived him of a fair proceeding. During the questioning of the man’s wife, the prosecutor deliberately bring forth that the man was involved in a drug treatment program at the time of his arrest. The court erred in permitting such questioning because the testimony would have no other purpose than to show a tendency to commit violation of the criminal law being charged. The information was not relevant to the elements of the drug crime charged or to the man’s alibi defense.
The city contends that the witness initially volunteered that the man was involved in the drug treatment program. The record reveals that the witness responded when the prosecutor asked her who, besides the police, had called her about the man’s arrest. However, the court overruled an objection by the defense counsel, and the prosecutor then proceeded to press the witness about the nature of the program. The court is not satisfied with her response that the program was for people who need to be rehabilitated. The prosecutor wanted to know the purpose of the rehabilitation. When the witness was apparently hesitant to respond, the prosecutor suggested that she was being guarded all of a sudden questions because she is not prepared to answer. Finally the prosecutor asked if it is a drug program and the witness agreed.
Finally, the prosecutor’s summation went well beyond the bounds of fair advocacy by frequently characterizing the alibi witness as untruthful, by suggesting that the man was selling drugs on the night of his arrest, and by suggesting that the alibi was invented after the witness met with defense counsel. The court finds that the collective damaging effect of the prosecutor’s improper conduct warrants a new trial.
Consequently, the accused man was found to have violated the conditions of a previously imposed sentence of probation on his conviction for attempted criminal sale of a controlled substance and was resentenced to an indeterminate term of imprisonment. However, since the record is inadequate to determine if the man was found to have violated probation based solely on his conviction under the law which the court have set aside, or based on allegations that he violated other conditions of his probation, the court reverse and remit the matter to the Supreme Court for further proceedings.
Along with the growing and developing technology, there is a problem that destroys the life of our every individual. Controlled substance can bring a lot of trouble to people when it is used the wrong way. If your child needs help for any drug related crime, sex crime or gun possesion charge, ask the Queens Drug Lawyers so they can provide what is essential for you and your family member. If you want utmost representation, you can call the team of Queens Criminal Lawyers at Stephen Bilkis and Associates and assist you with the criminal issues you are involved with.