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The error was compounded when the prosecutor was permitted to argue on summation that the jury


The defendant contested that the admission of evidence of his prior drug activity was error. The defendant was arrested after he allegedly sold two packets of heroin to an undercover police officer in August 1990. Upon his arrest, 10 additional packets of heroin were found on his person. The prosecution presented evidence on its direct case of an incident involving the defendant three months earlier. A police officer testified that he observed the defendant on a date in May 1990 standing in the doorway of an abandoned building with an unidentified male. The defendant had a number of ‘tins” in one hand, which he appeared to be counting, and money in his other hand. Upon the officer’s approach, the defendant ran through the building and was subsequently arrested. The officer testified that he recovered one “tin”, and it appeared to contain marijuana, although no proof was offered that it was in fact cocaine. The complainant contends that the evidence was admissible, purportedly for the limited purpose of proving the defendant’s intent to sell the 10 packets of heroin which were found on his person when he was arrested in August 1990.

As a general rule, evidence of similar uncharged crimes is inadmissible because the jury may convict the defendant because of his predisposition to criminal conduct. Such evidence may be received if it helps to establish some element of the crime under consideration or is relevant because of some recognized exception to the general rule. Evidence of a prior criminal sale of narcotics may be admissible under some circumstances to establish criminal intent, provided its probative value outweighs its prejudicial effect. However, evidence of prior criminal acts to prove intent is often unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself. It may be admitted to prove intent, for example, when the evidence falls short of demonstrating that the defendant acted with a particular state of mind, and where proof of a prior act is relevant to that issue. Where the act itself is equivocal, and the transaction would not be criminal unless accompanied by some guilty knowledge, evidence of prior uncharged crimes is more likely to be admissible to create an inference of guilty knowledge.

The testimony here that the defendant, on an occasion three months prior to the crime, was observed in possession of money and a “tin” of what may or may not have been cocaine, was inadmissible, and its introduction was an invitation to the jury to speculate that the defendant had previously sold drugs. This evidence was irrelevant. It was of no probative value on the issue of the defendant’s intent, and only served to establish his criminal propensities. The court erred in allowing its admission and in instructing the jury that it could be considered on the issue of intent to sell. The error was compounded when the prosecutor was permitted to argue on summation that the jury could rely on the incident in May to resolve any reasonable doubt that the defendant intended to sell the additional packets of heroin in August. The error was not harmless, the order was reversed.

In another cocaine possession case, an appeal was made by the defendant from a judgment of the Supreme Court convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The judgment reversed and the indictment is dismissed.

As part of a “buy-and-bust” operation, an undercover officer approached the defendant, who was standing on a sidewalk in Brooklyn, and asked him for two $10 packets of heroin. The defendant replied that he was only selling cocaine. The undercover officer said he wanted heroin, not cocaine. The defendant told the undercover officer to give him the money and he would take the undercover officer to a place where he could get heroin. The undercover officer handed the defendant $20 and they both walked diagonally across the street to a man who was later identified. The defendant told him that the undercover officer wanted “two dimes”, and gave him the $20. The man across the street handed the undercover officer two glassine envelopes containing heroin.

At trial, the defendant relied upon a defense of agency. An agency defense is not an affirmative defense, but rather, it may negate the existence of an element of the crime, namely, the sale or the intent to sell. Accordingly, the complainants are required to disprove agency beyond a reasonable doubt.

In this case, the complainants did not disprove the contention that the defendant was merely the agent of the buyer, the judgment must be reversed and the indictment dismissed for failure of proof.

The government together with law enforcers is doing their best in eliminating drug related crimes in the community. If you want to be a part of their fight to clean the streets with drug dependent individuals, win your case against drug crime and consult with the Kings County Drug Crime Lawyer or the Kings County Criminal Attorney. You can also approach a Kings County Drug Possession Lawyer from Stephen Bilkis and Associates.

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