An accused man was questioned at length by his attorney to establish that he no longer used heroin and was involved in a methadone program. His direct testimony was interlaced with differing references to his having been off heroin for at least one month, 6 weeks and two months, the clear implication being that he had no need for heroin possession or intent to distribute and sell it. He testified that he was en route from his home to his methadone clinic and, in doing so, took a most circuitous route, passing along 112th Street, which he knew was a shooting gallery. His attorney again presented the issue of his route by asking several questions as to the indirect route taken, which was never satisfactorily explained except that the accused man stated he sought to avoid encountering members of a motorcycle club whose location he never defined in relation to the path he took or the one he avoided.
On cross-examination of the accused man, the prosecutor explored the very areas which had been inquired into on direct and, for the most part, the extent of the cross-examination resulted from the vague, imprecise and inconsistent responses by the accused man. Thus, when questioned as to whether he had in fact stopped using heroin before joining the methadone program, he responded that he was trying to stop then. It was followed with the response that he wasn’t using it at that time. While, on direct examination, he claimed to have been off heroin for varying periods of time, on cross-examination he admitted he was not totally straight at the time of his arrest but was working on it. Although the dissent finds fault in the questions pertaining to the methadone program, it was the accused man who first injected the issue when he endeavored to show that he was off heroin and, accordingly, had no need to shoot up. Under the circumstances, inasmuch as the issues were explored extensively by the accused man on his direct examination, it would be unfair and unbalanced to preclude the prosecution from legitimate cross-examination. Contrary to the view expressed by the dissent, Mental Hygiene Law was intended to apply as a shield, not as a sword and, based on record, does not operate to preclude questions on the very subject introduced by the accused.
On this record, the court finds that there was no denial of the accused man’s right to a fair trial. In view of the extent of the accused man’s direct examination, it would be palpably unfair and unreasonable to limit the prosecution on the very significant issues raised to establish the defense that defendant was off the habit. The accused man opened the door by admitting that although he had been addicted to heroin since he was 19 years of age and had used drugs for twenty-years but he discontinued such use since he attended the methadone program months prior to his arrest. It is obvious that his defense was keyed to the fact that he had no need to deal in or get involved in a case of heroin possession since the financial demands of the habit had been eliminated by his being a part of the methadone program and that his being by coincidence on 112th Street, the shooting gallery, was to avoid some unsavory characters whose location he was unable to pinpoint. Moreover, the proof of guilt was overwhelming, the accused man, having been found with heroin possession of 24 glassine envelopes after being observed for a period of time by an officer who had monitored his actions by use of power binoculars from a second story window. Under the circumstances, considering all of the evidence, the unquestioned overwhelming proof of guilt and the absence of any objection to preserve the issue for review on appeal, at most there was harmless error.
Accordingly, the judgment rendered on February 24, 1981 in Supreme Court, New York County, convicting the accused man of criminal possession of a controlled substance in the second degree, should be reversed and a new trial ordered.
Wrongful conviction could ruin the life of an innocent person. If you were a victim of wrongful arrest for drug possession or drug sale, consult the New York City Heroin Possession Lawyers together with the NYC Criminal Attorneys. Stephen Bilkis and Associates can also offer the services of the New York Drug Crime Attorneys and NY Heroin Lawyers.