People v. Hood

• Citation: 361 N.Y.S.2d 410,46 A.D.2d 837
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph Robin HOOD, Appellant.
• Decision Date: 27 November 1974
• Court: New York Supreme Court — Appellate Division

Page 410

361 N.Y.S.2d 410

46 A.D.2d 837

The PEOPLE of the State of New York, Respondent, v. Joseph Robin HOOD, Appellant.

Supreme Court, Appellate Division, Third Department.

Nov. 27, 1974.

Douglas P. Rutnik, Public Defender, Albany County, Albany (Joseph M. Brennan, Albany, of counsel), 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, Jr., 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 January 10, 1974, upon a verdict convicting the defendant of the crime of criminal sale of a controlled substance in the third degree.

Defendant was convicted of criminal sale of a dangerous drug in the third degree following a jury trial in which an undercover State Police Investigator, James Werthmuller, testified that he had purchased heroin from defendant in the presence of one Daniel Jerome 'Cisco' Powell. Although Powell did not testify, Wethmuller related that he had been initially introduced to defendant by him. Three issues are raised on this appeal. It is the contention of defendant that the trial court erred in refusing his requested charge to the effect that the jury could draw an unfavorable inference from the failure of the prosecutor to call Powell as a witness. The record reveals that the defense was aware of Powell's identity prior to the time of trial (cf. People v. Goggins, 34 N.Y.2d 163, 356 N.Y.S.2d 571, 313 N.E.2d 41) and commented on the prosecution's failure to produce him as a witness on summation, but is devoid of any indication that his absence at trial was caused by the prosecution or prejudicial to the defendant (cf. People v. Stridiron, 33 N.Y.2d 287, 352 N.Y.S.2d 179, 307 N.E.2d 242; People v. Vaughn, 35 A.D.2d 889, 315 N.Y.S.2d 771). Secondly, it is argued that the trial court improperly denied defendant's request to charge the jury on the affirmative defense of entrapment. We agree with the trial court to the extent that there was insufficient proof adduced to warrant such an instruction (People v. Granger, 23 N.Y.2d 689, 295 N.Y.S.2d 940, 243 N.E.2d 156. See People v. Laietta, 30 N.Y.2d 68, 73, 330 N.Y.S.2d 351, 335, 281 N.E.2d 157, 160).

Finally, defendant attacks the constitutionality of the sentencing statutes pertaining to his...