People v. Beshears
| Citation | 323 N.Y.S.2d 66,66 Misc.2d 969 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Joseph BESHEARS, Defendant. |
| Decision Date | 21 May 1971 |
| Court | New York County Court |
Defendant moves pretrial, April 8, 1971, in accordance with the condition imposed when the Court granted his request at calendar call for the February 1971 criminal term of Saratoga County Court that the case be moved over the term for trial at the next criminal term scheduled for June 14, 1971. Indictment #1807--71 was found by the grand jury sitting in conjunction with the January 1971 term of Supreme Court of the State of New York held in and for the County of Saratoga. It is a two-count indictment. The first count charges the defendant with the crime of Criminally Selling a Dangerous Drug in the Third Degree, in violation of § 220.35 of the Penal Law of the State of New York, a Class C felony, and alleges a sale in the City of Saratoga Springs, New York on or about October 28, 1970, knowingly and unlawfully, of an alleged narcotic drug, to-wit: heroin. The second count accuses the defendant of the crime of Criminal Possession of a Dangerous Drug in the Fourth Degree, in violation of § 220.15 of the Penal Law of the State of New York, a Class D felony, and is based upon the same factual allegations as Count 1 above. Defendant has been at liberty on bail since shortly after his arrest, while the case has been pending.
The motions brought by defendant are multi-purpose and seek numberous items of relief. The relief sought is as follows:
1(a). For an inspection of the grand jury minutes; in the alternative, a dismissal of the indictment because of an insufficiency of evidence before the grand jury.
2. In the nature of discovery and inspection, a copy of any report of any scientific analysis of the 'narcotic drug', alleged in said indictment.
3. Authority to inspect and have a scientific analysis of said 'narcotic drug' on behalf of the defendant.
4. A bill of particulars.
At the oral argument of the motion on April 30, 1971, the prosecution consented to supply the defendant with a zerox or photocopy reproduction of the scientific analysis report obtained by the People which was presented to and received by the grand jury, pursuant to § 248 of the Code of Criminal Procedure, in partial support of said Indictment #1807--71 found by it against the above defendant (Item 2). The particular sought in Item 4 was specified as a statement from the District Attorney setting forth the type of scientific analysis or the name or other identification of the exact examination employed at the New York State Police Science Laboratory to reach the conclusion set forth in the aforesaid scientific report (Item 2). The People consented to supply the defendant with a statement identifying the exact examination used, and it was so ordered by the Court at the oral argument.
Defense counsel requested that, since he had been successful in obtaining the relief sought in Item 2 and Item 4, the request for an independent scientific analysis of the alleged drug by a representative of the defendant should be deferred, as it might well have become superfluous and could progress no further useful purpose. Relief Item #3 was therefore deferred.
The relief sought by the defendant in Item 1(a), or, in the alternative, Item 1(b), was vigorously opposed by the People on the oral argument, although no answering affidavit in opposition thereto was filed nor served. The People did not seeks a dismissal of this part of the motion brought by defendant, thereby conceding that there was sufficient foundation as a basis for the motion. The affidavit by the attorney for the defendant in support of this part of the motion is in the main based upon the testimony at the examination or preliminary hearing held before Hon. Richard F. Mullaney, Acting City Judge of the City of Saratoga Springs, N.Y. on December 14, 1970. The court on the motion was furnished with a complete transcript of the minutes of the aforesaid examination. It was supplied by the District Attorney with the consent of the attorney for the defendant. The court was also handed for the purposes of this part of the motion a complete transcript of the proceedings held before the Saratoga County grand jury on January 7, 1971. The minutes of the preliminary hearing were considered by the court only to determine if there was sufficient support therein to sustain the allegations contained in the affidavit of the attorney for the defendant on the insufficiency of the evidence before the grand jury, requiring the court to examine the grand jury minutes (People v. Howell, 3 A.D.2d 153, 155--156, 158 N.Y.S.2d 985, 986--988, affd. 3 N.Y.2d 672, 171 N.Y.S.2d 801, 148 N.E.2d 867) by meeting the requirement that he show extrinsic proof that there was such insufficiency or intrinsic proof that there is a reasonable possibility that the evidence presented was, in fact, deficient (People v. Jackson, 32 A.D.2d 590(2), 299 N.Y.S.2d 484); and to thus overcome the presumption that an indictment is based upon legal and sufficient evidence (People v. Randall, 9 N.Y.2d 413, 424, 214 N.Y.S.2d 417, 426, 174 N.E.2d 507, 514; People v. Glen, 173 N.Y. 395, 403, 66 N.E. 112, 115). This court is of the opinion that the minutes of the testimony received at the examination, or premininary hearing, sustain the main contentions set forth in the affidavit for the defendant upon which this part of the motion is based.
Both counts of the indictment are based upon the exchange of a glassine packet containing a white powder which moved from the defendant to an undercover special police officer, Daniel Jewett, Jr., employed by the Saratoga Springs City Police Department; and a payment of $10.00 moving from Special Officer Jewett to the defendant. It is conceded that the white powder itself cannot be marked physically for identification. Special Officer Jewett admittedly did not mark the glassine packet. Shortly after the above exchange, Special Officer Jewett delivered the glassine packet to Lieut. John Hudson, Saratoga Springs City Police Department, who performed a narcotic field test for opiates on a small amount of the white powder from the glassine packet. Lieut. Huson,...
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