To be argued by

                                                                                          JASON BRAIMAN

                                                                                          (15 Minutes)

 

 

NEW YORK SUPREME COURT

________________

 

Appellate Division – First Department

________________

 

 

The People of the State of New York,

 

                                                      Respondent,

 

-against-

 

Paul Johnson

 

                                    Defendant-Appellant.

 

 

 

BRIEF FOR RESPONDENT

 

 

                                                                        ROBERT M. MORGENTHAU

                                                                        District Attorney, County of

                                                                        New York

                                                                        One Hogan Place

                                                                        New York, NY 10013

                                                                        (212)-335-9000

 

 

 

    JASON O. BRAIMAN

    Of Counsel

 

 

                                                                                                                                   


 

TABLE OF CONTENTS

 

 

 

PRELIMINARY STATEMENT ………………………………………………………………….2

 

QUESTIONS PRESENTED ……………………………………………………………………..2

 

STATEMENT OF FACTS ………………………………………………………………………...3

 

      Introduction  ………………………………………………………………………………..3

 

      The Sandoval Application .………………………………………………………………..4

 

      The Prosecution Case at Trial    …………………………………………………………….5

 

      Deliberations, Verdict and Sentence    ………………………………………………………7

 

ARGUMENT

 

POINT I

THE WEIGHT OF THE EVIDENCE SUPPORTS THE JURY’S VERDICT OF GUILTY ON THE CHARGE OF CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE, N.Y.P.L. § 220.39, WHERE DETECTIVE VICTORIA DAVIS-SPECTOR, WHOSE EXPERIENCE INCLUDES NEARLY 300 UNDERCOVER DRUG BUYS, POSITIVELY IDENTIFIED APPELLANT AS THE SELLER HAVING RECOGNIZED HIM FROM SEVERAL PRIOR ENCOUNTERS, AND NO OTHER FACTS ARE IN DISPUTE.  PEOPLE v. BLEAKLEY, 69 N.Y.2d 490 (1987)      …………………………………………………………………………9

 

POINT II

THE TRIAL COURT ACTED PROPERLY WITHIN ITS DISCRETION IN ADMITTING 22 OF APPELLANT’S 28 PRIOR CRIMINAL CONVICTIONS AND FREQUENT USE OF ALIASES TO IMPEACH HIS CREDIBILITY AT TRIAL, WHILE EXCLUDING SIX OFFENSES INVOLVING NARCOTICS AND BARRING INQUIRY INTO UNDERLYING FACTS.  PEOPLE v. SANDOVAL, 34 N.Y.2d 371 (1974)                                                 ………....……………...………….……...13

 

 

CONCLUSION ..…………………………………………………………………………………19

 

STATEMENT PURSUANT TO RULE 5531 ..………………………………….………………20


PRELIMINARY STATEMENT

This is an appeal from a judgment of the Supreme Court, New York County, rendered May 11, 1995, convicting appellant, after a jury trial, of criminal sale of a controlled substance in the third degree, to wit: cocaine, and sentencing him to six to twelve years in state prison (Atlas, J. at hearing, trial and sentence).

Notice of appeal was timely filed, and this Court on Date October 17, 1995, granted appellant leave to appeal as a poor person on the original record and typewritten briefs and assigned Sara Dougherty as counsel on appeal. No application for a stay pending appeal has been made, and appellant is currently incarcerated pursuant to the judgment appealed herein.

 

QUESTIONS PRESENTED

I.        Whether the weight of the evidence supports the jury’s verdict of guilty on the charge of Criminal Sale of a Controlled Substance in the Third Degree, N.Y.P.L. §220.39, where Detective Victoria Davis-Spector, whose experience includes nearly 300 undercover drug buys, positively identified appellant as the seller having recognized him from several prior encounters, and no other facts are in dispute. People v. Bleakley, 69 N.Y.2d 490 (1987).

 

II.     Whether the trial court abused its discretion in admitting 22 of appellant’s 28 prior criminal convictions and frequent use of aliases to impeach appellant’s credibility at trial, while excluding six offenses involving narcotics and barring inquiry into underlying facts. People v. Sandoval, 34 N.Y.2d 371 (1974).


STATEMENT OF FACTS

 

Introduction

New York County Indictment Number xxxx/94 charged appellant with criminal sale of a controlled substance in the third degree, N.Y.P.L. § 220.39, stemming from an undercover “buy-and-bust” operation conducted by the New York Police Department, Manhattan South, Narcotics District, on August 17, 1994.  As part of this operation, undercover narcotics detective Victoria Davis-Spector, Shield #1421, purchased two vials of cocaine from appellant with recorded “buy money” at approximately 4:30 p.m.  Some fifteen minutes later, Det. Davis-Spector identified appellant from the undercover police vehicle, and he was subsequently detained and arrested.

At appellant’s Sandoval application, the trial court (Atlas, J.) admitted a portion of appellant’s extensive prior criminal record, including a robbery, numerous misdemeanor petit larceny convictions, and use of several aliases and false identifiers, for impeachment purposes.  However, the court excluded appellant’s convictions for felony assault and any drug-related offenses.  At trial, Det. Davis-Spector described the undercover operation and positively identified appellant as the seller. Forensic chemist Linda Steinman identified the substance in the vials purchased by Det. Davis-Spector as cocaine.  Appellant did not testify at trial nor present a defense.  After approximately one hour of deliberations, the jury found appellant guilty as charged.

 

The Sandoval Application

The People sought to impeach appellant’s credibility by citing his extensive criminal record.  Dating back to 1985, appellant had twenty-seven misdemeanor convictions, which included twenty-one for petit larceny, five for misdemeanor possession of narcotics, and one for resisting arrest (S: 3)1.  Appellant also had a 1987 felony conviction of attempted assault in the second degree, which covered a charge of possession of narcotics with intent to sell, and one for robbery in the first degree in 1989, for which he was currently on parole from a 4½-to-9-year sentence (S: 4, 7).  In addition, appellant had used numerous aliases over the course of several years, to wit: twenty-four different names, at least sixteen of which are substantially different, eleven dates of birth, three places of birth including one “unknown,” and two social security numbers, each with two incongruent digits (S: 4-6).

Defense counsel argued that many of appellant’s convictions occurred in the 1980s, when he was a much younger man, and that all of his misdemeanor convictions predated his robbery conviction and subsequent incarceration (S: 8-9). Counsel also contended that evidence of appellant’s felony convictions would be “more prejudicial than probative” (S: 9). With regard to the aliases, counsel pointed out that such information is often subject to clerical and typographical errors, may be taken under chaotic circumstances, and that an arrestee is neither under oath nor under any legal obligation to give correct information (S: 10).

In ruling upon the application, the court took note of appellant’s “extraordinary record of deceit and self-dealing,” a pattern essentially unbroken since 1985, and that appellant had “created that [criminal] career for himself” (S: 12-13). The court ruled that the People could ask appellant about his larceny and robbery convictions, as well as his use of aliases and related concerns (S: 14-15). The court, however, excluded appellant’s assault conviction, as well as any narcotics-related misdemeanor convictions. In addition, the court required the People to end their inquiry if appellant admitted to any of these offenses, and to seek a ruling on whether to pursue any facts of individual cases if appellant denied same (S: 15).  Given appellant’s record, the court concluded that “no more favorable balance…could be struck” (S: 16). Defense counsel entered no further objection to the court’s ruling.

 

The Prosecution Case at Trial

On August 17, 1994, Detective Victoria Davis-Spector, Shield #1421, Manhattan South, Narcotics District, was assigned as an undercover for a narcotics “buy-and-bust” operation, which was to take place that afternoon in the vicinity of West 41st Street between Eighth and Ninth Avenues (287, 292, 306).  Det. Davis-Spector had been an undercover narcotics officer for three and a half years, after five years spent on patrol in Bedford-Stuyvesant, Brooklyn, and had made nearly three hundred such drug buys in that time  (288, 289). 

Generally, in response to civilian complaints, undercover officers go to certain specific locations and attempt to buy narcotics from suspects, who are subsequently apprehended and arrested by other officers (290).  The undercover involved in the buy-and-bust will generally “dress down,” travel with other officers in an unmarked police vehicle with tinted windows, but will not actually participate in the arrest to avoid disclosing his/her identity (290, 291, 321).  The buy itself is usually executed with pre-recorded “buy money,” with serial numbers photocopied and given to the undercover, with the expectation that such money with matching serial numbers will be recovered from the suspect, although that is not always, nor even most often, the result (307-309).

Det. Davis-Spector reported for duty at 11:45 a.m. on August 17 and received her TAC plan for the day; the buy operation set for West 41st Street was the only one scheduled for that day (306, 307, 310). Along with three other undercover officers, Det. Davis-Spector arrived via undercover police vehicle, specifically a van with tinted windows, at the scene of the prospective drug buy at 4:25 p.m. (293, 310, 312).  Det. Davis-Spector and two of the other undercover officers left the van at 4:30 to make their buys (312, 313).

Upon leaving the vehicle, Det. Davis-Spector proceeded from the north side of 42nd Street to the south side, then down West 41st Street, and saw five to seven people in the middle of the block, one of whom she identified as appellant Paul Johnson (293, 316). Det. Davis-Spector recognized appellant among the group, having observed him briefly on approximately eight prior occasions, though she had never made a buy from him (294, 327, 328). In addition, appellant, who is five-foot-seven weighing 150 pounds, was wearing a white t-shirt with black pants and sneakers, while his companions all had distinct and dissimilar physical features and clothing (298, 299, 316, 317). 

The detective made eye contact with appellant from approximately five to six feet away, and asked for “dimes,” i.e., ten-dollar bags or vials of crack cocaine (293, 295). Appellant asked how many she wanted, and she replied two (294). Leaning to his right, appellant asked a female sitting next to him, one Tina Santiago, for the merchandise (294, 296).  She handed him two vials with grey tops which he then gave to the detective (294).  Some of appellant’s other companions were talking amongst themselves, remarking on the teddy-bear doll the detective was carrying, but drawing very little of her attention (318).  Det. Davis-Spector handed appellant twenty dollars, then left the scene to return to the vehicle (294, 296, 320). All told, the transaction took about half a minute (296, 314). The detective did not observe appellant or the group while walking from the buy scene to the van, which took from three-and-a-half to five minutes (320). None of the other fourteen officers on the undercover team were assigned to observe the transaction, and none actually did (319).

Approximately ten minutes after getting into the van, Det. Davis-Spector made a confirmatory identification, spotting appellant with Ms. Santiago and field team officers (297, 321, 322). Although the van had tinted windows and there was a light mist of precipitation that day, it was still broad daylight (4:30 p.m. in mid-August), the van was moving at a rate of speed akin to walking, and there was nothing obstructing the detective’s view, i.e., no physical obstacles and little rain splatter on the glass (298, 321, 322, 329).  She looked at appellant for five to ten seconds (324).  Appellant was detained by plainclothes officers and arrested by a Det. Flannigan (324).

The vials which Det. Davis-Spector purchased were vouchered, placed in a plastic bag and sealed, and introduced at trial as People’s Exhibit #1 (299, 300).  Det. Davis-Spector identified them as the same vials with grey tops she had received from Santiago at the time of the sale (301).  Defense’s objection to the admission of this evidence was overruled (303).  Forensic chemist Linda Steinman testified for the People that she had tested the substance contained in the vials, and identified it as cocaine (336).

Under cross-examination, Det. Davis-Spector conceded that neither drugs nor any pre-recorded buy money were recovered from appellant after his arrest (325).  Nor was the buy money recovered from Ms. Santiago; the police did recover a substance from Ms. Santiago, but neither the substances nor their containers resembled those bought by Det. Davis-Spector (326, 327).  Nonetheless, the court denied the defense’s motion to dismiss on the grounds that such lack of recovery impugned the People’s identification of appellant as the seller (349).

 

Deliberations, Verdict and Sentence

The court submitted the count of criminal sale of a controlled substance in the third degree. After deliberating for approximately one hour before reaching a verdict, the jury convicted appellant of criminal sale of a controlled substance in the third degree (392-395). On June 6, 1995, Justice Atlas sentenced appellant to six to twelve years in state prison, with surcharge imposed.


ARGUMENT

POINT I

 

THE WEIGHT OF THE EVIDENCE SUPPORTS THE JURY’S VERDICT OF GUILTY ON THE CHARGE OF CRIMINAL SALE OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE, N.Y.P.L. § 220.39, WHERE DETECTIVE VICTORIA DAVIS-SPECTOR, WHOSE EXPERIENCE INCLUDES NEARLY 300 UNDERCOVER DRUG BUYS, POSITIVELY IDENTIFIED APPELLANT AS THE SELLER HAVING RECOGNIZED HIM FROM SEVERAL PRIOR ENCOUNTERS, AND NO OTHER FACTS ARE IN DISPUTE.  PEOPLE v. BLEAKLEY, 69 N.Y.2d 490 (1987)

 

Appellant claims that his conviction was against the weight of the evidence, based upon one essential contention: that appellant was not the person from whom Det. Davis-Spector bought the cocaine in the buy-and-bust operation; or, alternatively, that the People did not satisfactorily establish appellant’s identity as the seller at trial.  Given the People’s burden of proof and the evidence presented, this contention must necessarily rely on three separate notions: (1.) that Det. Davis-Spector had neither ample time nor adequate conditions in which to make a positive identification; (2.) that no officer other than Det. Davis-Spector observed the transaction nor identified appellant at trial; and (3.) that neither drugs nor pre-recorded buy money were recovered from appellant following his arrest.  In reviewing the weight of the evidence, the court may set aside the verdict if “based on all the credible evidence a different finding would not have been unreasonable.”  People v. Bleakley, 69 N.Y.2d 490, 495.  However, in weighing the probative force of testimony and related inferences, the court must accord considerable deference to the trier of fact and not “substitute [itself] for the jury.”  Id.  In this case, the jury clearly believed that appellant was the seller.  The jury found Det. Davis-Spector’s experience, both as an undercover narcotics detective and with appellant himself, her description of the buy-and-bust, and her recognition of appellant both credible and convincing.  Despite any possibly less-than-ideal weather or other attendant conditions, and despite the absence of drugs or buy money recovered from appellant, her testimony and hers alone is enough to establish beyond a reasonable doubt that appellant was in fact the seller.

At the time of appellant’s arrest, Detective Davis-Spector had three-and-a-half years’ experience as an undercover narcotics detective, with nearly 300 buys to her name.  Her job was to buy drugs as an undercover in just such buy-and-bust operations; she had, nearly 300 times, bought drugs from a suspect and then visually identified that suspect after the sale. By all indications, the buy at issue here was a routine operation with minimal difficulties and no surprises.  No one here made any sudden, suspicious or unexpected movements, threatened the detective by either word or act, or did anything even remotely out of the ordinary.  Whatever minor distractions there may have been, such as the weather, appellant’s companions and their comments about the teddy-bear doll, or the detective’s internal focus on either her “performance” or her safety, these were well within her experience and she would naturally be well-accustomed to them and more than capable of making a definitive identification.  This was an ordinary, routine buy-and-bust; the detective was by no means distracted nor had her attentions sufficiently misdirected as to call her identification of appellant as the seller into question.

Det. Davis-Spector had seen appellant before on several occasions and knew what he looked like.  She recognized him at the time of the buy and at the time of her subsequent identification from the police van.  Familiar faces are easy to spot; they stand out even in a dense crowd.  In this case, the detective came face-to-face with appellant from only a few feet away, and observed him for a good half-minute, which is actually quite a long time to be looking at a person even if his face is not familiar.  Having already seen and recognized appellant a few minutes earlier, the detective needed only five to ten seconds to identify him from the van, which still qualifies as a good, long look under most circumstances.  By any measure, Det. Davis-Spector had plenty of time to recognize a familiar face.

That the van’s windows were tinted and may have been slightly rain-splattered fails to impugn the post-buy identification as well.  Tinted automotive windows are designed to prevent anyone from seeing in; they do not impede anyone from seeing out, as during daylight hours the ambient light outside the vehicle will always be significantly brighter than that inside.  (The same principle applies to sunglasses; the wearer can see through them, but observers cannot see the wearer’s eyes.)  There was hardly any water on the windows in any event, as the precipitation was a mere “mist” rather than a sustained rain, but as water is clear and colorless, and the human eye has a limited depth of field (i.e., cannot focus on near and distant objects simultaneously), any moisture or droplets on the glass would have had a negligible effect, if any, on Det. Davis-Spector’s ability to see and identify appellant.  The transparent droplets would have been out of focus and thus practically invisible, not nearly obstructive enough to impede the detective’s view. In addition, the van was moving slowly enough for a person to keep up with it by walking beside it.  The conditions were therefore far from adverse enough to meaningfully affect Det. Davis-Spector’s view or the identification.

The District Attorney at trial did not feel the need to supplement Det. Davis-Spector’s identification with that of another officer, such as the “ghost” who would routinely observe and back up an undercover officer in a buy-and-bust operation.  While the prosecution clearly felt that Det. Davis-Spector’s testimony was sufficient, and the jury apparently agreed, the absence of the “ghost’s” testimony is hardly probative in itself.  Logically, it is always risky to draw positive inferences from negative facts, i.e., to infer from the absence of one thing the affirmative existence of any specific other thing.  It does not naturally follow from the mere absence of testimony that any such testimony would have taken any particular form, let alone been detrimental to the prosecution.  It might just as well have been more redundant than corroborative, and therefore unnecessary.  Det. Davis-Spector’s testimony alone was clearly sufficient to positively identify appellant as the seller.

Since only Det. Davis-Spector knows for certain what she saw, and her testimony appears to be on firm ground, the defense is left to rely on the absence of buy money and drugs recovered from appellant after his arrest as “proof” that he is the wrong man.  Again, the mere absence of these items in itself is proof of nothing.  Buy money is used so that police can expect or hope to recover it from a suspect after a drug buy, but they by no means require that said money be recovered.  In other words, the recovery of drug money can bolster an identification, but the non-recovery thereof does not defeat it.  In fact, Det. Davis-Spector testified that the recovery of buy money does not even occur “most often,” let alone invariably, in similar buy-and-bust cases.  Since Ms. Santiago was carrying the drugs requested by and sold to Det. Davis-Spector, it stands to reason that appellant would probably not have been carrying any drugs himself.  That the drug paraphernalia found on Ms. Santiago was dissimilar from that purchased by the detective by no means necessitates that Ms. Santiago could not have previously carried the purchased drugs.  In fact, it supports the contention that she, not he, carried the merchandise while he merely made the sale.  In addition, Det. Davis-Spector was not watching appellant during the ten minutes or so between the buy and the subsequent identification/arrest; in the meantime, in a crowded city, appellant could have dispatched the buy money in any number of ways or places.  One can hardly state that it is substantially more likely that appellant could be the wrong man, than that he could have gotten rid of the cash before his arrest.  That either of these is possible essentially negates the issue; given the reasonability and deference requirements of Bleakley, it cannot require a reversal of the jury’s verdict.

Accordingly, this court should affirm the judgment.

 

POINT II

THE TRIAL COURT ACTED PROPERLY WITHIN ITS DISCRETION IN ADMITTING 22 OF APPELLANT’S 28 PRIOR CRIMINAL CONVICTIONS AND FREQUENT USE OF ALIASES TO IMPEACH HIS CREDIBILITY AT TRIAL, WHILE EXCLUDING SIX OFFENSES INVOLVING NARCOTICS AND BARRING INQUIRY INTO UNDERLYING FACTS. PEOPLE v. SANDOVAL, 34 N.Y.2d 371 (1974)

 

Appellant also contends that the trial court abused its discretion in allowing “too much” of appellant’s persistent, practically unbroken record of criminal convictions and self-serving use of false identities to be used by the People to impeach his credibility at trial.  The contention relies merely on the unfavorability of the ruling, i.e., the supposedly prejudicial nature of appellant’s record, the age of some of his convictions, and the vague possibility of “mistakes” attending some of his aliases.  However, the trial court has broad discretion in making an advance ruling as to the availability to the People of a defendant’s prior criminal convictions and vicious or immoral acts.  People v. Sandoval, 34 N.Y.2d 371, 374 (1974); see also People v. Walker, 83 N.Y.2d 455, 458 (1994); People v. Rivera, 227 A.D.2d 205 (1996).  The trial court must strike a balance between the probative value as to credibility of defendant’s record and the risk of prejudice to defendant, both of which will always be present.  Sandoval, 34 N.Y.2d at 375.  Evidence of prior crimes will be admissible if it bears “logically and reasonably on the issue of credibility,” but will be deemed prejudicial if it shows only that the defendant has a “criminal bent” or a propensity to commit the specific crime charged.  Id. at 376, 377; see also People v. Bowles, 132 A.D.2d 465, 466 (1987).  The mere fact that a ruling is unfavorable to defendant does not in itself indicate an abuse of discretion by the trial court.  Walker, 83 N.Y.2d at 459.  Prior use of aliases, in particular, bears specifically and exclusively on credibility and carries “no undue prejudice.”  Id. at 463 (emphasis in original).  The fact that convictions may be several years old in no way requires the court to exclude them.  Rivera, 227 A.D.2d at 205.  Moreover, appellant must show that even if the court did abuse its discretion, such abuse was harmful in that it had a substantial impact on the verdict.  People v. Crimmins, 36 N.Y.2d 230, 241 (1975); see also People v. Williams, 56 N.Y.2d 236, 240 (1982); Sandoval, 34 N.Y.2d at 378.  In this case, the trial court acted well within its discretion in selectively admitting twenty-one misdemeanor convictions and one felony conviction, along with evidence of various false identities.  The court excluded any prior convictions relating to the sale or possession of narcotics, and precluded the People from inquiring about any facts relating to appellant’s prior convictions absent a denial by appellant and a ruling by the court.  In addition, the court articulated sound and specific reasoning to justify the decision.  In light of the ruling and the law, the court clearly acted properly within its discretion and the ruling, although adverse to appellant, was not unduly harmful.

In the first instance, for this Court to consider any issue on appeal, the issue must be preserved in the lower court.  See, e.g., Rivera, 227 A.D.2d at 206. Counsel must enter an objection or else implicitly concede the issue.  Id.  In this case, defense counsel presented at argument the obvious blanket contention that appellant’s prior record would be “more prejudicial than probative.”  Counsel also remarked on the age of appellant’s convictions and offered alternative explanations for his false identities, e.g., chaotic situations, typographical errors, etc.  Counsel, however, raised no objection to the court’s ultimate ruling, either during or after it.  The issue therefore was not preserved and is not subject to review by this Court.  Should the court wish to review the ruling in the interests of justice, the court will find that the ruling was proper and not unduly harmful to appellant.

People v. Sandoval entitles a defendant to a pre-trial motion and hearing on whether and how the People may impeach his credibility by cross-examining him on his prior criminal record.  Sandoval, 34 N.Y.2d at 374.  The defendant can then decide whether to take the stand and testify on his own behalf, knowing in advance the permissible scope of cross-examination as to his prior conduct.  Id. at 375.  That prior criminal, vicious or immoral conduct will reflect poorly on defendant’s character is obvious, and thus not determinative; i.e., that fact alone will not preclude its admission.  Id. at 376.  The trial court must therefore weigh the People’s interest in impeaching a defendant’s credibility against the defendant’s right to a fair trial without prejudice, and it is up to the court in its discretion to strike an appropriate balance between the two.  Id. at 375.  Admissible prior acts will include those which bear “logically and reasonably” on credibility, particularly those which show a propensity to “further self-interest at the expense of society.”  Id. at 377.  Conversely, any record of convictions or bad acts similar to the current charge, or that merely indicate a criminal habit or tendency without regard to credibility, should be excluded.  Id.  It is the defendant’s burden to show that evidence of his prior criminal, vicious and immoral acts would be so prejudicial as to “far outweigh [its] probative worth…[and thus] warrant its exclusion.” Id. at 378.

Under the framework established in Sandoval, the trial court in the present case acted properly and well within its discretion in selectively including a substantial portion of appellant’s considerable criminal record.  While it is true that the court included 21 of appellant’s 27 misdemeanor convictions, one of two felonies and a history of false names and other identifiers, the crimes which the court excluded are instructive here.  All five misdemeanor convictions for possession of narcotics were excluded, as was the attempted assault conviction which itself encompassed a drug charge.  Without the drug charges, none of what remains can rightly be considered prejudicial.  The robbery conviction was included as indicative of appellant’s propensity to put his own interests ahead of others’ and those of society, as suggested by Sandoval.  Appellant’s use of aliases, in the opinion of the court, obviously bore directly and precisely on his lack of credibility.  The court was therefore both thoughtful and selective, with the principles of Sandoval clearly in mind, in both admitting and excluding portions of appellant’s lengthy and persistent criminal record.  Given such thoughtfulness, this Court cannot conclude that the trial court abused, let alone failed to exercise, discretion in ruling on this issue.

For further illustration of the court’s use of discretion in this matter, the Walker case is directly on point.  In Walker, the defendant was charged with criminal sale of a controlled substance in the third degree in connection with an undercover buy-and-bust operation, the same charge levied here.  Walker, 83 N.Y.2d at 457.  The defendant’s priors included two felonies, one involving a narcotics and one a robbery, a ten-year string of misdemeanor convictions totaling seventeen, and use of aliases including fourteen different names and five dates of birth –  all facts similar to those in the present case.  Id.  The trial court admitted the defendant’s criminal record and use of aliases as impeachment material but precluded any inquiry into the facts of those cases; the ruling was upheld by both the Appellate Division and the Court of Appeals as within the trial court’s discretion, even though the former noted that the trial court “might have been more discriminating.”  Id. at 474 (emphasis added).  In this case, the trial court was more discriminating than that in Walker, excluding appellant’s felony attempted assault conviction as well as five misdemeanor convictions involving narcotics.  The Walker court noted that the trial judge’s ruling there indicated “sensitivity to the particular prejudice that may result” when a jury knows that a defendant has committed similar crimes in the past.  Id. at 459.  The ruling in the present case, excluding drug-related convictions and precluding inquiry into the individual facts of those remaining, reflects that same sensitivity, and the court therefore clearly did exercise discretion, and appropriate discretion at that. 

The admission of a defendant’s prior use of aliases and related false identifiers bears precisely on credibility, and thus falls squarely within the Sandoval rule permitting their admission as impeachment material.  See Sandoval, 34 N.Y. 2d at 374.  In addition, the Walker court held that not only is the use of an alias “manifestly…an indication of dishonesty,” and thus indisputably a proper subject for impeachment, such untruthfulness is not in itself criminal and therefore exerts no undue prejudice against a defendant.  Walker, 83 N.Y.2d at 461, 463.  The trial court therefore acted well within its discretion in allowing the People to impeach appellant’s credibility through reference to his considerable history of giving police false names, dates of birth, and Social Security numbers.  In addition, that there may have occasionally been “errors” of a clerical or typographical nature in recording a defendant’s identification is hardly determinative as a general principle, and is if anything a determination to be made by the trier of fact.  Id. at 462.  Even given that vague possibility, appellant’s record, specifically the number and variety of names, birth dates and Social Security numbers attributed to him over the course of his adult life, clearly indicates a dishonest and self-serving propensity on his part.  The trial court properly admitted this material for the purposes of impeaching appellant’s credibility.

The court should reject appellant’s reliance on People v. Bowles, in which the Appellate Division held that the trial court abused its discretion in allowing the prosecution too much of defendant’s prior record.  Bowles, 132 A.D.2d at 467.  In that case, the trial court allowed inquiry into thirteen of defendant’s prior convictions; for seven of these, the court permitted the prosecution to inquire into the underlying facts.  Id. at 466.  Some of those prior crimes were substantially similar to the crime charged in the instant case.  Id.  The Appellate Division held that the trial court failed to strike the proper balance between the issues of credibility and prejudice.  Id.  However, in this case the trial court did strike the proper balance by excluding that which the Bowles trial court improperly allowed, i.e., the underlying facts of prior offenses and any history of similar crimes.  The preclusion of inquiry into underlying facts was also determinative in People v. Rivera, notwithstanding the number and age of defendant’s prior convictions.  Rivera, 227 A.D.2d at 206.  Given these precedents, the court cannot characterize the mere number or proportion of prior convictions admitted, nor their age, as an abuse of the trial court’s discretion.

Finally, the ruling by the trial court was not and cannot have been unduly harmful to appellant.  The mere fact that the ruling precluded appellant from testifying on his own behalf is not determinative; it is, rather, merely speculative.  Williams, 56 N.Y.2d at 240.  Nonetheless, appellant must show that the ruling had an impact on the verdict, i.e., that that there is a significant probability that, but for the error, the jury would have returned an acquittal.  Crimmins, 36 N.Y.2d at 241.  Given the weight of the evidence in this case, it is difficult if not impossible to imagine how a more favorable ruling could have aided appellant at trial or obviated his conviction.  Whereas in Williams, 56 N.Y.2d at 241, the court found that the defendant’s potential testimony could have provided “critical information” regarding elements of the crime, there is no such potential here.  Appellant essentially denies only that he was the seller; there is no dispute as to whether the sale actually took place, the particular circumstances of the sale, or whether the contents of the vials sold to Det. Davis-Spector were in fact a controlled substance, i.e., cocaine.  A basic denial of involvement in a crime is always implicit in a defendant’s not-guilty plea.  Had he testified, the jury would have simply been required to weigh the credibility of Det. Davis-Spector’s positive identification against appellant’s denial and/or claimed, uncorroborated alibi.  Thus, appellant could not have told the jury anything they did not already have to consider by implication.  In addition, even a more favorable ruling would still have allowed the prosecution to impeach appellant’s credibility to some degree, whereas Det. Davis-Spector’s credibility was not impeached at trial; defense counsel merely implied that she could have been mistaken.  That the jury would have found the detective more credible than appellant seems self-evident.  There is practically no possibility, and certainly no significant probability, that a more favorable ruling would have resulted in an acquittal.  The trial court’s Sandoval ruling was therefore harmless to appellant.

 

CONCLUSION

The court should deny appellant Johnson’s appeal and affirm his conviction.

 

Dated:        New York, NY                                                ___________________________

      December 8, 2006                                                       Jason O. Braiman        

Attorney for the Respondent


SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST DEPARTMENT

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THE PEOPLE OF THE STATE OF NEW YORK,                       :

 

                              Respondent,                                                     :

 

                  -against-                                                                       :

 

PAUL JOHNSON,                                                                        :

 

                              Defendant-appellant.                                         :

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STATEMENT PURSUANT TO RULE 5531

 

1.                  The indictment number in the court below was xxxx/94.

2.                  The full names of the original parties were The People of the State of New York against Paul Johnson. There has been no change of parties on this appeal.

3.                  This action was commenced in Supreme Court, New York County.

4.                  This action was commenced by the filing of an indictment.

5.                  This appeal is from a judgment convicting appellant, after a trial, of criminal sale of a controlled substance in the third degree.

6.                  This is an appeal from a judgment of conviction rendered May 11, 1995.

7.                  Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used.