People v. Gilmour

• Decision Date: 01 February 1974
• Citation: 354 N.Y.S.2d 52,78 Misc.2d 383
• Parties: The PEOPLE of the State of New York v. Norman GILMOUR, Defendant.
• Court: New York City Court

Page 52

354 N.Y.S.2d 52

78 Misc.2d 383

The PEOPLE of the State of New York v. Norman GILMOUR, Defendant.

Criminal Court of the City of New York, Queens County, Part 3.

Feb. 1, 1974.

Nicholas Ferraro, Dist. Atty., Queens County by Harold Leeds, Asst. Dist. Atty., for the People.

Lebetkin & Rubinstein by Melvin M. Lebetkin, Kew Gardens, for defendant.

M. MARVIN BERGER, Judge:

Euclidean mathematics contains a number of general postulates--statements which are admitted to be true without the need for proof, such as is required to demonstrate the validity of a theorem.

Among such postulates is one frequently referred to as the postulate of equality. It states: 'Things which are equal to the same thing or to equal things are equal to each other.'

Another postulate is the substitution postulate--'In any mathematical operation any thing may be substituted in the place of its equal.' (Geometry for the Practical Man, by J. E. Thompson, 3rd ed. New York, 1962).

These formulas are not limited to mathematics. Their self-evident logic is applicable to other fields of knowledge--law, for example.

The defendant in this case in effect asks the court to disregard the postulates of equality and substitution and to hold that the People have failed to connect the defendant with the crimes charged against him.

The defendant is accused of criminal sale of a controlled substance in the fifth degree, marijuana, (Penal Law, § 220.34) and of criminal possession of the same controlled substance in the seventh degree (Penal Law, § 220.03).

On December 4th, 1973, Special Officer Camhi, an employee of the Board of Education, witnessed the defendant handing a small brown manila envelope to an unknown person in a corridor of the Forest Hills High School. The defendant was seen to receive simultaneously a quantity of currency. Officer Camhi left his place of concealment, whereupon the putative purchaser dropped the envelope. Camhi picked it up and pursued the defendant. On arrest, the defendant was searched and found to be in possession of two of the envelopes containing the same quantity of marijuana found in the first envelope.

An arresting officer summoned to the scene testified that he presented the three envelopes for analysis to the police laboratory. The laboratory found marijuana present and sealed the contents of the envelopes in three separate transparent compartments in a plastic envelope, in which were also placed the three brown envelopes and the laboratory report.

Defendant moves to dismiss the complaint on the ground that the People's witnesses failed to identify the specific envelope which was the subject of the alleged sale and the two envelopes which the defendant was charged with possessing criminally.

He asserts that the articles must be identified as the articles they purport to be and must be shown to be connected with the crime or the accused (22A C.J.S. Criminal Law § 709, pp. 946, 949).

Furthermore, the inability of People's witnesses to identify the specific packet which is the subject of the alleged sale, deprives him of the privilege of pretrial discovery or inspection, since Criminal Procedure Law, section 240.20(3) requires the defendant to 'specifically designate' the item sought to be discovered and inspected.

The inability of the People's witnesses to identify precisely the envelope which was the subject of the alleged sale might compel dismissal, if its contents differed from the contents of the other two envelopes, either as to the nature of the substance or where weight of the contents had a significant bearing on the degree of the crime.

But neither of these considerations are involved here.

According to Wigmore's Evidence (3rd ed.) sec. 152, in a discussion of the admissibility of stolen property, 'The possession of goods of the same kind as the general class from which the taking was done is receivable even though the specific quantity or any quantity of the general mass cannot be identified or discovered or shown to be missing.'

A footnote cites R v. Burton, Dears Cr. C. 282 (1854). In that case, defendant was arrested as he emerged from a warehouse with pepper in his pockets of a sort similar to that stored in the warehouse, but it could not be proven that any pepper was missing. The pepper found on defendant was admitted in evidence, accompanied by a comment by Justice Maule, stating:

'If a man go into the London Docks, sober, without means of getting drunk, and comes out of one of the cellars, very drunk wherein are a million gallons of wine, I think that would be reasonable evidence that he had stolen some of the wine in that cellar, though you could not prove that any was stolen or any wine was missed.'

In People v. Levia, 3 A.D.2d 42, 158 N.Y.S.2d 448 (3rd Dept.), it was sought to recover penalties for violation of the Conservation Law on the ground that the defendants concertedly caught fish during a closed season. Reversing the trial court's dismissal at the end of the People's case, the Appellate Court, in a per curiam opinion, wrote (p. 43, 158 N.Y.S.2d p. 450):

'Of course witnesses could not positively identify the three fish as the same they had seen caught, but the connection was so clear as to render the exhibit competent evidence. The absence of direct and positive proof went to the weight, not to the competency. People v. Neufeld, 165 N.Y. 43, 47, 58 N.E. 786; People v. Bonier, 189 N.Y. 108, 81 N.E. 949.'

In People v. Sands, 46 Misc.2d 981, 260 N.Y.S.2d 492 (App.Term, 1st Dept.), the arresting officer observed four men enter the defendant's stationery-candy store, hand him money and slips of paper and then leave without making a purchase. After each such transaction the defendant would walk to an ice cream...