People v. Bray

• Decision Date: 25 May 1964
• Citation: 251 N.Y.S.2d 930,21 A.D.2d 696
• Parties: The PEOPLE of the State of New York, Respondent, v. Chauncey BRAY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 930

251 N.Y.S.2d 930

21 A.D.2d 696

The PEOPLE of the State of New York, Respondent, v. Chauncey BRAY, Appellant.

Supreme Court of New York, Appellate Division, Second Department.

May 25, 1964.

David F. Jordan, Central Islip, for appellant.

Bernard C. Smith, Dist. Atty., Riverhead, for respondent; Charles T. Matthews, Huntington, of counsel.

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered April 26, 1963 after a jury trial, convicting him of selling narcotics (Penal Law, § 1751, subd. 1), and of possessing narcotics (Penal Law, § 1751-a); and imposing sentence. Judgment affirmed (see People v. Wright, 20 A.D.2d 652, 246 N.Y.S.2d 250).

BELDOCK, P. J., and BRENNAN and HOPKINS, JJ., concur.

KLEINFELD and CHRIST, JJ., dissent and vote to reverse the judgment insofar as it relates to the conviction and sentence for selling narcotics; to dismiss the count of the indictment which charges defendant with selling narcotics; to vacate the sentence upon the conviction for possession of narcotics; to affirm the judgment insofar as it convicts defendant of possession of narcotics; and to remand defendant to the County Court, Suffolk County for appropriate re-sentencing upon the conviction for narcotics possession, with the following memorandum:

In our opinion, the proof established that defendant was acting merely as an agent for the purchaser; hence, he cannot be convicted of selling narcotics (People v. Lindsey and Norris, 16 A.D.2d 805, 228 N.Y.S.2d 427, affd. 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492; People v. Branch, 13 A.D.2d 714, 213 N.Y.S.2d 535; People v. Buster, 286 App.Div. 1141, 145 N.Y.S.2d 437; United States v. Moses, 3 Cir., 220 F.2d 166; United States v. Sawyer, 3 Cir., 210 F.2d 169). The proof did establish, however, the defendant's guilt of the misdemeanor of unlawful possession of narcotics.