DECISION and ORDER Procedural Status: This matter comes before the Court by way of the Defense’s Motion in Limine requesting to redact portions of the defendant’s recorded Police interrogation/interview, which the Prosecution intends to introduce at trial, following a Huntley suppression hearing finding the Defendant’s statements to have been voluntarily made and denying the Defendant’s Motion to Suppress. The Prosecution, now prior to jury selection, asks the Court for the “expanded possession charge” to the Jury with respect to the Defendant’s “possession”. The Defendant opposes the people’s application for this Jury charge. Defendant claims that he alone was charged as principal with possession, and not his unindicted wife Latoya1. Defendant argues that to include this charge now would change the theory of the case on the eve of trial. The Prosecution contends that Defendant’s claim is without merit as the Prosecution has no obligation under the Indictment to specify whether they intend to prove that the defendant was working as a “principal” and/or as an “accomplice”, because there is no legal distinction between the two. Additionally, the Prosecution now moves this Court on the eve of trial and with a Cross Motion for a Molineux ruling on the Defendant’s prior drug convictions. The Prosecution argues as follows: “This cross-motion is raised before trial because, in light of the Defendant’s objection to the People’s notice that we request the full “possession charge” as contained in the New York Pattern Criminal Jury Instructions, it appears defendant plans to argue, at trial, that his deceased wife, LATOYA PERULLI, is the only person who criminally possessed the contraband seized from defendant’s residence in connection with this case.” The Prosecution contends that by this defense the defendant’s criminal convictions for drug possession and distribution is admissible under Molineux for the purpose of demonstrating his intent, common scheme or plan to possess the drugs found in his home with his wife present.2 The Defense argues that the Prosecutor’s Molineux application should be denied because the Defendant is not raising an “agency defense”3, but is claiming that he was not in possession of the drugs. The Prosecutor also argues, that the Defendant’s proposed redacted statements should not now be redacted since his admissions to selling drugs and his frequent references to recent parole on a drug offense would negate his defense claim that his wife Latoya Perulli alone possessed the narcotics at their home. This issue is now in focus as the Defendant’s wife is now deceased; even though it has not been explained why she wasn’t arrested at the home and charged with possession of the drugs in their bedroom. HISTORY: On or about October 25th, 2018, at about 12:20pm, police seized, more than eight ounces of cocaine and more than 1,000 individual packets of heroin, as well as digital scales in a box under the bed of the defendant Jason Perulli, and his wife Latoya Perulli. The couple shared a home at 80 Zimmerman Road, Unit 14, Town of Fallsburg, Sullivan County. This search followed the Defendant’s arrest at about 9:18am that day in the Town of Fallsburg for operating a Motor Vehicle on a public highway with both a suspended and revoked driver’s license (Count number Six of the Indictment). At the vehicle stop the Police arrested the Defendant and three hours later went to the defendant’s marital residence and asked his wife for consent to search their home for drugs. On January 16, 2019 a Sullivan County Grand Jury returned Indictment #12-2019, charging the Defendant Jason Perulli alone with Criminal Possession of a Controlled Substance in the First Degree a violation of New York Penal Law Section 220.21(1), Criminal Possession of a Controlled Substance in the Third Degree, three counts in violation of New York Penal Law Section 220.16(12); 220.16(1); and 220.16(1), Criminally Using Drug Paraphernalia in the Second Degree in violation of New York State Penal Law Section 220.50(3), and Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree in violation of New York State Vehicle and Traffic Law 511 (1)(a). OPINION The Defendant’s statements to the Police must be redacted as the Prosecution consents to with respect to the following paraphrased comments appearing on the DVR recorded statement at various times: 8:07 I know you’re on parole; 8:45-9:20 discussion about parole; 9:43-49 I took urine yesterday; I used to sell drugs; 11:17-11:26 You came home, you’re trying to do right; something is still going on; 11:37 I’m not looking to tell parole; 14:50 I’m on parole; 18:29 I thought he was the one who set me up the last time; 19:22 He knows what I used to do; 20:55-21:13 I used to sell a lot of drugs; 22:05 I’ve been in prison; 22:28 I explained what I went to jail for; 23:25-23:33 Since you went away; I used to be up there in this shit; 43:35 I was locked up with him; 49:32 Where does parole think you’re staying; 1:01:10 I’m a two-time felon on parole. However, the People now seek a pre-trial ruling that should the defendant “open the door” with a defense that is not consistent with his history, or should the defendant claim at trial that he was not in “possession” of the items found at his residence, those portions of statements which the Prosecution has consented to be redacted, should be admissible and material in the People’s case in chief; as well as his prior drug related criminal history under People v. Molineux, 168 NY 264 and People v. Watson, 150 AD3d 1384 [3rd Dept. 1993], affirmed sub nom 86 NY2d 10 [1995]. In People v. Watson, 150 AD3d 1384 [3d Dept. 2017] the Appellate Division held, in their Molineux ruling, “While defendant contends that the unavailability of the CI should have weighed in favor of precluding inquiry into these prior convictions, we note that “[t]he fact that…defendant may have been the only possible source of testimony for his defense” heightened the importance that the People be permitted to inquire into issues bearing on his veracity (People v. Jones, 138 AD3d 758, 758, 27 NYS3d 880 [2016], Iv denied 27 NY3d 1152, 39 NYS3d 386, 62 NE3d 126 [2016]; see People v. Hayes, 97 NY2d at 208; People v. Sturdevant, 74 AD3d 1491, 1494, 904 NYS2d 777 [2010], Iv denied 15 NY3d 810, 934 NE2d 904, 908 NYS2d 170 [2010]). The Watson Court went on to state “overall, as County Court’s Sandoval ruling reflects a measured balancing of the probative value and prejudicial effect of each prior conviction and greatly limited the potential for prejudice, County Court’s ruling was not an abuse of discretion.” Here, the Defense relies upon People v. Crandall, 67 NY2d 111 (1986) in support of their application to deny the Prosecutor’s Molineux Motion. The Defendant claims that People v. Crandall supports Counsel’s argument that this Defendant’s prior drug related crimes should not be admitted into evidence, as the legal concept of “Scienter4” is not an issue here because the Defendant is not asserting an “ agency defense” but rather is simply trying to argue “that the narcotics were not possessed by him”. In People v. Crandall, supra, the defendant was charged with Criminal Sale of a Controlled Substance and claimed that he had been framed by the police. The Court of Appeals held that since the People’s evidence of his prior uncharged drug sales did not contradict the frame-up claim, its admission into evidence was reversible since it served no purpose other than to show he was predisposed to sell drugs. The Court stated that the affirmative acts which the defendant sought to prove had nothing to do with the selling of drugs. Therefore, the refutation of that claim lay in proof that defendant’s story was untrue not that the defendant had a criminal propensity to selling drugs. This case may be distinguished from the case at bar, in which the defendant’s prior conviction to possess and sell drugs would be relevant and probative to the issue of whether he possessed the drugs in question. When the Defendant argues that his wife possessed the narcotics and not, he, he opens the door to his prior history regarding his former drug possession convictions. The prejudicial effect of this evidence does not outweigh its probative value to this Defendant’s guilty possession. Similarly, under these circumstances the Prosecutor may present evidence of the redacted portions of the Defendant’s statements to show his intent, absence of mistake, and common scheme or plan to possess the narcotics at his home. The Defendant’s argument that “Scienter” is not at issue here, and therefore the People’s Molineux application should be denied, is likewise without merit. If this defendant claims that he was not in possession of the narcotics found at his residence, that would be contrary to his prior history and would “open the door” and make his redacted statements and the defendant’s history regarding his drug possessions probative and germane to the People’s proof of possession. The Court of Appeals addressed this issue of uncharged criminal conduct in People v. Alvino, (71 NY2d 233[1987]) wherein the Court of Appeals reiterated the rules concerning the admission of uncharged crimes into evidence (See also People v. Ingram, 71 NY2d 474). In Alvino, the defendant was charged with violating Penal Law 220.16 possession with intent to sell, based upon his possession of cocaine at the time of his arrest. The Court of Appeals noted that proof of intent to sell is a required element of that crime (Penal Law 220.16). The Court of Appeals held that because the mere fact of “possession of the quantity involved did not clearly indicate whether defendant held the drugs for sale or for personal use, the evidence of the prior sale to the informant was legally admissible to establish the element of intent. The Court of Appeals distinguished cases like People v. Crandall that involve a history of the criminal sale of drugs from which intent may readily be inferred from the prior sale its self. The court held, “Despite the factual similarity and temporal proximity between the uncharged criminal activity and the crime at issue, we perceive no abuse of discretion in County Court’s assessment that the probative value of this evidence outweighed the resulting prejudice.” In People v. Taylor, 141 A.D.2d 982, [3rd Dept 1988] offered the law applied in People v. Crandall, (supra) to the Defendant’s prior criminal activity showing intent to sell. In addition to the Prosecutor’s Molineux application, the Prosecution has also requested the full “possession charge”5, pursuant to the Pattern Jury Instructions. That request is granted. The defendant’s argument that since he was only Indicted as a “principal” it would be error to charge the jury that he could be found guilty as either a “principal” or an “accessory” is without merit. The Defendant claims that such a “full possession” charge changes the theory of the case and deprives the defendant of proper “notice” to prepare for trial. However, that argument is not relevant to the Prosecution’s application on the expanded or full possession charge, since that charge does not implicate the Defendant as an accomplice or accessory, but rather explains the Prosecution’s theory of “constructive possession” of the narcotics found at his home with only his wife present. As a general rule, the Court’s charge must not alter the theory or theories set forth in the language of the indictment. This is so in order to maintain the threefold protections of an indictment: to provide defendant with fair notice of the accusations against him and allow him to prepare a defense; to insure that the crime for which defendant is tried is the same as intended by the Grand Jury; and to protect defendant against double jeopardy by specifying the specific crime for which he was tried. (People v. Iannone, 45 NY2d 589, 594-595 [1978].) In the case at bat the Defendant was given fair notice of the narcotic possession allegations against him. The Court’s instruction on “actual possession” and “constructive possession” does not amount to charging the defendant with a crime not appearing in the Indictment, or as a co-defendant. In this case, the narcotics was found at the Defendant’s marital residence, under a bed, and in the bedroom which he shared with his wife. The charge requested by the Prosecution defines “possession” which under the law can take the form of either physical or constructive possession. Since the Defendant’s wife was not charged with possession and is now deceased, it is material that the Jury understand the full Penal Law definition of “possession”. It cannot be gainsaid that this charge would not change the theory of this case, or in any way prejudice or surprise this defendant. The Defenses’ reliance on People v. Grega, 72 NY2 489 is also misplaced. In Grega, the “theory of the case” was altered by the Jury charge which in fact did charge the jury with a separate and distinct theory that was inconsistent with the Indictment. That does not apply here, since possession is possession under the law. The Indictment never excluded Defendant from constructive possession which is totally consistent with the jury charge on possession. Finally, the Defendant further argues that since he was Indicted as a “principal” it would be error to charge the jury that he could be found guilty as either a “principal” or an “accessory” for actual or constructive possession. The Defendant claims that such a charge changes the theory of the case and deprives the Defendant of proper “notice” in preparation for trial. The Defendant’s argument is again misplaced. The Defendant was indicted for “possession”. The People have no obligation to provide “notice” to the Defendant that they intend to prove whether the possession is actual or constructive. Whether a Defendant is charged as a principal or an accomplice is not an issue here and has no bearing on the theory of possession charged in this Indictment. Even if the Defendant had been charged as a principal agent, the Law makes no distinction between the prosecution of a defendant as a principal or the prosecution of a defendant as an accomplice (See People v. Kirton, 36 AD3d 1011 [3d Dept. 2007] wherein the Defendant’s convictions arose from his involvement in the armed robbery of a bank. The Appellate Division held that defendant’s claim that he was only indicted as a principal and therefore the Trial Court erred in charging the jury that he could be found guilty as either a principal or an accessory was without merit. In so holding, the Appellate Division stated “This charge was clearly permissible (as there is “no distinction between liability as a principal and criminal culpability as an accessory” (People v. Duncan, 46NY2d74, 79-80, 385 NE2d 572, 412 NYS2d 833 [1978], cert denied 442 US 910, 99 S Ct 2823, 61 L Ed 2d 275 [1979]). People v. Duncan, supra, affirmed that where it is irrelevant whether the defendant was the actual perpetrator of the crime or liable as an accessory thereto, there being no distinction between liability as a principal and criminal culpability as an accessory inasmuch as the status for which the defendant is convicted has no bearing upon the theory of the prosecution, the court’s amplification of its charge to the jury regarding the scope of accessorial liability was entirely proper since the jury had already been charged that another participant in the crime was an accomplice as a matter of law. Although not reached here, it is noted that an Indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a Defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a Defendant’s basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice (See also People v. Duncan, supra). The People’s request for the expanded or full jury charge on “possession” which includes both “actual” and “constructive” possession is granted. The court has reviewed all the facts and circumstances and Motions heretofore had herein. Based on the foregoing, it is ORDERED that Defendant’s motion for redaction is granted in part as consented to, and the Prosecutor’s application under Molineux to undo the redaction is granted as consistent with the holding herein and the Prosecutor’s application to allow the Defendant’s prior criminal drug history is granted as consistent herein, and the Prosecutor’s application for an expanded “possession” charge is granted. This shall constitute the Decision and Order of this Court. Dated: August 27, 2019 Monticello, New York
