People v. Fowler

Decision Date27 November 1974
Citation361 N.Y.S.2d 408,46 A.D.2d 838
PartiesThe PEOPLE of the State of New York, Respondent, v. Roberta FOWLER, Appellant.
CourtNew York Supreme Court — Appellate Division

Martin Brickman, Albany, for appellant.

Ralph W. Smith, Jr., Albany County Dist. Atty., Albany (Peter L. Rupert, Albany, of counsel), for respondent.

Atty. Gen. Louis J. Lefkowitz (Peter Joseph Dooley, Albany, of counsel), appearing pursuant to Executive Law, § 71.

Before HERLIHY, P.J., and SWEENEY, KANE, MAIN and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered February 21, 1974, convicting defendant of the criminal sale of a controlled substance in the third degree.

Defendant was indicted, tried and convicted of the sale of a controlled substance in the third degree. On this appeal, among other things, she attacks the recently enacted 'drug law' as being unconstitutional. We rejected a similar attack in People v. Venable, 46 A.D.2d 73, 361 N.Y.S.2d 398 (decided herewith)).

In addition, defendant contends that her conviction should be reversed because of various errors committed by the trial court. Finally, she maintains that she was deprived of a fair trial because the People permitted a material witness to leave the jurisdiction. We find no merit to this latter contention. There is no proof in the record that the People aided this particular individual in leaving the jurisdiction. In any event, the prosecution was not required to call the individual. (People v. Vaughn, 35 A.D.2d 889, 315 N.Y.S.2d 771.) His name was disclosed at the identification hearing and there is no proof that defendant intended to call him.

We are are not persuaded by defendant's argument that it was improper for the court to permit the People to further cross-examine a defense witness on matters relating to the alleged sale which were not brought out on direct examination. The court, in our view, did not abuse its discretion in allowing the examination on this new matter. (See People v. Reaves, 30 A.D.2d 828, 292 N.Y.S.2d 296.) Neither are we persuaded by defendant's contention that the court erred in refusing to charge the jury on the defense of agency (People v. Jamison, 29 A.D.2d 973, 289 N.Y.S.2d 299), nor in refusing to suppress the in-court identification by the undercover agent. It is significant that defendant admitted being at the scene of the sale and the witness had ample opportunity to observe defendant not only...

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5 cases
  • Carmona v. Ward
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 21 Abril 1978
    ... . Page 405 . 576 F.2d 405 . Martha CARMONA and Roberta Fowler, Petitioners-Appellees, . v. . Benjamin WARD, Commissioner of the New York State Department . of Correctional Services, Frances Clement, ... was upheld unanimously by both the Appellate Division, 46 A.D.2d 838, 361 N.Y.S.2d 408 (3d Dep't 1974), and the New York Court of Appeals, People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975), in face of an attack ......
  • People v. Singleton
    • United States
    • New York Court of Appeals
    • 24 Febrero 1977
    ...the People did not intentionally cause the witnesses' unavailability, nor delay the trial for more than a year. (People v. Fowler, 46 A.D.2d 838, 361 N.Y.S.2d 408, affd. 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d There is also some doubt as to the needfulness of the potential witnesses' te......
  • People v. Kennedy
    • United States
    • New York Supreme Court Appellate Division
    • 4 Septiembre 1979
    ...party may prove through cross-examination any relevant proposition, regardless of the scope of the direct examination (People v. Fowler, 46 A.D.2d 838, 361 N.Y.S.2d 408, affd. 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338; People v. Tice, 131 N.Y. 651, 30 N.E. 494). By repeatedly declarin......
  • People v. Paul
    • United States
    • New York Supreme Court Appellate Division
    • 27 Noviembre 1974
    ...the trial court should have directed the prosecution to produce police informant, Daniel Jerome Powell as a witness (People v. Fowler, 46 A.D.2d 838, 361 N.Y.S.2d 408 (decided herewith); People v. Hood, 46 A.D.2d 837, 361 N.Y.S.2d 410 (decided His remaining contentions are also without meri......
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