                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 23, 2015                     106085
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MICHAEL A. NICHOLAS,
                    Appellant.
________________________________


Calendar Date:   May 28, 2015

Before:   Garry, J.P., Egan Jr., Rose and Lynch, JJ.

                             __________


     Cheryl Coleman, Albany, for appellant.

      J. Anthony Jordan, District Attorney, Fort Edward (Devin J.
Anderson of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Washington
County (McKeighan, J.), rendered September 6, 2013, upon a
verdict convicting defendant of the crimes of criminal sale of
controlled substance in the third degree and criminal possession
of a controlled substance in the third degree.

      Following his alleged sale of crack cocaine to a
confidential informant (hereinafter CI) on October 9, 2012,
defendant was charged with criminal sale of a controlled
substance in the third degree and criminal possession of a
controlled substance in the third degree. Defendant was
thereafter convicted as charged and sentenced, as a second felony
offender, to concurrent prison terms of 12 years, plus three
years of postrelease supervision. Defendant now appeals.
                              -2-                106085

      We disagree with defendant's contentions that his
convictions were not supported by legally sufficient evidence and
were against the weight of the evidence. Defendant primarily
maintains that the People failed to prove beyond a reasonable
doubt that he was the person who possessed and sold the crack
cocaine. He also challenges the CI's credibility.

      Scott Gillis, a police detective, testified at trial that
defendant became the target of a narcotics investigation
following his presence at a September 27, 2012 controlled buy
between the CI and another individual at an apartment in the
Village of Hudson Falls, Washington County. Thereafter, on
October 9, 2012, the CI arranged to purchase crack cocaine from
defendant at the same location. After a search of the CI
confirmed the absence of contraband, he was provided with $100 of
prerecorded buy money, equipped with an audio recording and
transmitting device and dropped off by Gillis a few blocks from
the residence. Gillis observed the CI walk to the apartment
building, although he did not see him enter the residence.
According to the CI, defendant and two other men were inside the
apartment at the time of the sale. After a coded discussion with
defendant about prices of narcotics, the CI gave him the buy
money in exchange for a bag of crack cocaine. Gillis was able to
contemporaneously listen to the conversation in the residence via
the audio device, but he did not witness the transaction, nor was
it apparent from the recording that a drug sale had even
occurred. The CI then reconvened with Gillis, turned over the
bag of crack cocaine and submitted to another search, which
revealed no contraband. A lab analysis of the substance in the
bag confirmed that it was, in fact, cocaine. Notably, the buy
money was never recovered by law enforcement.

      A verdict is legally insufficient "where, viewing the
record in the light most favorable to the prosecution, there is
no valid line of reasoning and permissible inferences from which
a rational jury could have found the elements of the crime proved
beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 349
[2007] [internal quotation marks and citation omitted]). As to
defendant's challenge to the weight of the evidence, given that
an acquittal would not have been an unreasonable outcome, we must
weigh "the relative probative force of conflicting testimony and
                               -3-                106085

the relative strength of conflicting inferences that may be drawn
from the testimony while viewing the evidence in a neutral light
and giving deference to the jury's credibility determinations"
(People v Gibson, 121 AD3d 1416, 1418 [2014], lv denied 24 NY3d
1119 [2015] [internal quotation marks and citation omitted]; see
People v Johnson, 91 AD3d 1194, 1196 [2012], lv denied 18 NY3d
995 [2012]). Here, the only direct evidence of defendant's
presence in the apartment at the time of the sale was the
testimony of the CI, who not only implicated defendant in the
transaction, but also identified his voice at trial during a
playback of the audio recording.1 Accordingly, the entire case
hinged on the CI's credibility. Although the CI gave testimony
that was inconsistent with his grand jury testimony, received
compensation for executing the crack cocaine purchase, worked
with law enforcement on other controlled buys for approximately
five years and had an extensive criminal history, such
information was presented to the jury, which clearly credited the
CI's testimony (see People v Richards, 124 AD3d 1146, 1147
[2015], lv denied 25 NY3d 992 [2015]; People v Wingo, 103 AD3d
1036, 1037 [2013], lv denied 21 NY3d 1021 [2013]; People v
Tisdale, 103 AD3d 987, 988 [2013], lvs denied 21 NY3d 1004, 1010
[2013]). Thus, we cannot say that the evidence was legally
insufficient or that the verdict was against the weight of the
evidence (see People v Wingo, 103 AD3d at 1036-1037; People v
Jones, 101 AD3d 1241, 1241-1242 [2012], lv denied 21 NY3d 944
[2013]; People v Heaney, 75 AD3d 836, 836 [2010], lv denied 15
NY3d 852 [2010]; People v Miles, 61 AD3d 1118, 1119-1120 [2009],
lv denied 12 NY3d 918 [2009]).

      However, we find merit in the claim that defendant was
deprived of a fair trial due to the cumulative effect of
erroneously admitting evidence of prior uncharged crimes and the
improper vouching by a witness for the People. "Evidence of
similar uncharged crimes has probative value, but as a general
rule it is excluded for policy reasons because it may induce the
jury to base a finding of guilt on collateral matters or to
convict a defendant because of his [or her] past" (People v


     1
        Gillis testified that the CI's voice was the only voice
that he could recognize from the audio recording.
                              -4-                106085

Alvino, 71 NY2d 233, 241 [1987]; accord People v Buskey, 45 AD3d
1170, 1172 [2007]; see People v Arafet, 13 NY3d 460, 465 [2009]).
However, such evidence "may be admitted where [it] fall[s] within
the recognized Molineux exceptions – motive, intent, absence of
mistake, common plan or scheme and identity – or where such proof
is inextricably interwoven with the charged crimes, provide[s]
necessary background or complete[s] a witness's narrative"
(People v Rivera, 124 AD3d 1070, 1073 [2015] [internal quotation
marks and citation omitted]; see People v Morris, 21 NY3d 588,
594 [2013]). "To be inextricably interwoven . . . the evidence
must be explanatory of the acts done or words used in the
otherwise admissible part of the evidence" (People v Crandall, 67
NY2d 111, 116 [1986]; see People v Ventimiglia, 52 NY2d 350, 361
[1981]). In other words, "it must be 'evidence relating directly
to the crime charged' such that 'the value of the evidence
clearly outweighs any possible prejudice'" (People v Crandall, 67
NY2d at 116-117, quoting People v Vails, 43 NY2d 364, 368-369
[1977]). Before admitting evidence of prior uncharged crimes,
the trial court must determine that its probative value outweighs
its prejudicial effect (see People v Till, 87 NY2d 835, 836
[1995]; People v Elmy, 117 AD3d 1183, 1187 [2014]). In short,
"under . . . Molineux jurisprudence, we begin with the premise
that uncharged crimes are inadmissible and, from there, carve out
exceptions" (People v Resek, 3 NY3d 385, 390 [2004]).

      In their Molineux proffer, the People sought to introduce
evidence of a September 24, 2012 meeting at the apartment among
defendant, the CI and others, during which defendant allegedly
possessed a handgun and handled numerous bags of crack cocaine.
They also included in their application the September 27, 2012
controlled buy at which defendant was present. County Court
permitted evidence as to both events, but prohibited evidence as
to the handgun and crack cocaine from the September 24, 2012
event on the ground that such testimony would be too prejudicial.
The court specifically pointed out that the September 27, 2012
event was not a sale involving defendant. Although the court did
not elaborate, this decision reflects the requisite balancing of
the probative value of the evidence against its prejudicial
effect (see People v Meseck, 52 AD3d 948, 950 [2008], lv denied
11 NY3d 739 [2008]).
                              -5-                106085

      At trial, however, the CI testified that defendant was not
only present during the September 27, 2012 controlled purchase of
crack cocaine, but that he had also participated in the
transaction by providing the actual drugs. County Court denied
defendant's prompt motion for a mistrial, but otherwise sustained
his objection and struck this portion of the CI's testimony,
without further limiting instructions to the jury. In our view,
this revelation was highly prejudicial, as it related to a recent
uncharged crime that was nearly identical to the sale for which
defendant was on trial (see People v Wallace, 31 AD3d 1041, 1043-
1045 [2006]; People v Foster, 295 AD2d 110, 113 [2002], lv denied
98 NY2d 710 [2002]). Shortly thereafter, the CI recounted that,
upon entering the apartment on October 9, 2012, he had observed
defendant sitting at a table "with large amounts of heroin and
crack cocaine in front of him." Although no reference to
"heroin" was included in the People's Molineux proffer, or
otherwise previously disclosed, the court overruled defendant's
objection, permitting further testimony from the CI about the
presence of heroin. Because defendant was not charged with
possession or sale of heroin, it cannot be said that this
evidence was directly related to or in any way necessary to
explain his alleged possession and sale of crack cocaine such
that it was inextricably interwoven into the CI's narrative (see
People v Crandall, 67 NY2d at 116-117; People v Ventimiglia, 52
NY2d at 361; compare People v Buchanan, 95 AD3d 1433, 1435-1436
[2012], lvs denied 22 NY3d 1039, 1043 [2013]; People v Torres, 19
AD3d 732, 734 [2005], lv dismissed 5 NY3d 810 [2005]).
Significantly, the court did not attempt to cure the prejudice
arising from the CI's improper testimony by issuing an
instruction either at the time of defendant's objection or during
the jury charge (compare People v Tinkler, 105 AD3d 1140, 1143
[2013], lv denied 21 NY3d 1020 [2013]; People v Reid, 97 AD3d
1037, 1038 [2012], lv denied 19 NY3d 1104 [2012]; People v
Leonard, 83 AD3d 1113, 1117 [2011], affd 19 NY3d 323 [2012];
People v Delaney, 42 AD3d 820, 822 [2007], lv denied 9 NY3d 922
[2007]).2 Compounding the problem, County Court had earlier


    2
        Notwithstanding defendant's failure to make such a
request, County Court should have provided appropriate limiting
instructions to the jury (see People v Resek, 3 NY3d at 389;
                              -6-                106085

denied defendant's application to redact that part of the audio
recording of the October 9, 2012 event, which referenced the
pricing and packaging of "dog food," a code name for heroin. By
its ruling, the court was apparently under the erroneous
impression that an undercover audio recording of the transaction
in issue could not be redacted. Coming at the beginning of the
recording, this commentary should have, and easily could have,
been redacted.3

      Further prejudice resulted from the People's redirect
examination of Gillis, who stated that the CI was "very reliable
and very trustworthy." After County Court overruled defendant's
objection, and characterized the testimony as "opinion," Gillis
elaborated that the CI had "never given [him a] reason to not
believe anything that [the CI] is telling [him]." Allowing
Gillis to vouch for the CI's credibility was clearly improper
(see People v Guay, 18 NY3d 16, 24 [2011]; People v McClary, 85
AD3d 1622, 1623-1624 [2011]; People v Fredrick, 53 AD3d 1088,
1088-1089 [2008]; see also People v Slaughter, 189 AD2d 157, 160
[1993], lv denied 81 NY2d 1080 [1993]). The effect was
compounded by the People's summation, wherein the prosecutor
surmised that law enforcement had used the CI for several years
because of his reliability (see People v Oathout, 21 NY3d 127,
131 [2013]; People v Casanova, 119 AD3d 976, 978-979 [2014]).
While we recognize that County Court sustained defendant's


People v Mitchell, 112 AD3d 1071, 1074 [2013], lv denied 22 NY3d
1140 [2014]).
    3
        The audio recording contained a conversation between
defendant and the CI regarding the sale of "dog food," i.e.,
heroin. Defendant moved to redact those portions of the
recording referring to dog food on the basis that the jury would
incorrectly infer that the coded language concerned the crack
cocaine sale with which defendant was charged. County Court
denied defendant's request and the People played the recording in
full for the jury, neglecting to explain the term at issue.
Defendant was then pressed to bring out the meaning of dog food
during his cross-examination of the CI in order to ameliorate any
confusion resulting from leaving the term undefined.
                              -7-                106085

objection, no curative instruction was issued, and we remain
concerned that the prosecutor's remark amplified the effect of
Gillis' improper vouching (see People v Wallace, 31 AD3d at
1044).

      In view of the fact that defendant was one of three people
who could have sold the crack cocaine to the CI during a
transaction that was neither verbalized nor witnessed by anyone
but the CI, we cannot say that the proof of defendant's guilt is
overwhelming (see id. at 1043-1045), such that the errors at
trial may be deemed harmless (see People v Brown, 114 AD3d 1017,
1019-1020 [2014]; People v Parham, 74 AD3d 1237, 1238 [2010], lv
denied 15 NY3d 923 [2010]; see generally People v Gillyard, 13
NY3d 351, 357 [2009]). Rather, it is our view that the
cumulative effect of these errors deprived defendant of a fair
trial (see People v Wlasiuk, 32 AD3d 674, 675 [2006], lv
dismissed 7 NY3d 871 [2006]). Accordingly, we must reverse
defendant's judgment of conviction and remit for a new trial. In
light of this disposition, defendant's remaining contentions have
been rendered academic.

     Garry, J.P., and Rose, J., concur.


Egan Jr., J. (concurring).

      I agree that the cumulative errors identified by the
majority warrant reversal of defendant's conviction and the
remittal of this matter for a new trial. Where the majority and
I part company, however, is with respect to the evidence relative
to defendant's alleged possession of heroin. To my analysis,
this uncharged criminal activity falls squarely within one or
more of the recognized Molineux exceptions. Here, the
confidential informant (hereinafter CI) testified that, upon
entering the apartment on the day in question, he observed
defendant "sitting at the table with large amounts of heroin and
crack cocaine in front of him." Such testimony, in my view, was
part and parcel of the CI's attempt to set the scene and provide
context for the October 9, 2012 transaction, thereby providing
necessary background information and/or completing the CI's
narrative (see People v Rivera, 124 AD3d 1070, 1073 [2015]).
                              -8-                  106085

Hence, step one of the Molineux test was satisfied.

      Although I agree that, under the particular facts of this
case, the probative value of such evidence was outweighed by its
prejudicial effect, thereby warranting the exclusion thereof, I
write separately to make clear that not every casual, off-the-
cuff reference to an uncharged crime constitutes reversible
error. For example, it would be neither unusual nor surprising
if, during the course of a controlled buy, a CI or an undercover
officer observed additional evidence of criminal activity beyond
that with which a particular defendant ultimately was charged.
Although any testimony relative to such uncharged criminal
activity indeed should be part of the People's Molineux
application and must satisfy that two-part test in order to be
admitted into evidence at trial, not every fleeting or isolated
reference to uncharged criminal activity constitutes a Molineux
violation, nor does the mere mention of an uncharged crime
necessarily afford a basis upon which to reverse an otherwise
valid conviction. And, to the extent that the majority's
decision suggests otherwise, I disagree.



      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Washington County for a
new trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
