People v. Vargas
| Decision Date | 10 March 1980 |
| Citation | 425 N.Y.S.2d 370,74 A.D.2d 859 |
| Parties | The PEOPLE, etc., Respondent, v. Salvatore VARGAS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alan C. Fried, Brooklyn, for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Timothy G. O'Connor, Brooklyn, of counsel), for respondent.
Before RABIN, J. P., and GULOTTA, MARGETT and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 6, 1978, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Judgment affirmed.
Appellant's counsel initially submitted a brief in which he asserted that the appeal presented no "non-frivolous" issues. He therefore sought permission to withdraw from the case. The District Attorney agreed that there were no issues of merit presented by the case.
Our review of the record, however, revealed that there was some question as to whether reversal was required because the Trial Judge had failed to marshal the evidence in the course of his charge to the jury. Although no exception was taken, we concluded that an issue was presented which could not be termed frivolous. (See People v. Carney, App.Div., 424 N.Y.S.2d 243 (2d Dept., 1980); People v. Rivera, 60 A.D.2d 852, 400 N.Y.S.2d 583; People v. Mabry, 58 A.D.2d 897, 397 N.Y.S.2d 7.) In such circumstances, where legal points arguable on their merits exist in the record, we will withhold our determination until the indigent defendant is afforded the assistance of counsel to advance argument on the issues. (See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493; cf. People v. Gonzalez, 47 N.Y.2d 606, 419 N.Y.S.2d 913, 393 N.E.2d 987.) Accordingly, we directed counsel for both sides to submit supplemental briefs on the issue of marshaling.
Appellate counsel and the District Attorney have complied with our direction and have submitted briefs thoroughly exploring the issue of marshaling as it affects the case at bar. Upon consideration of the arguments presented we are of the view that, although the court's failure to marshal evidence relating to the crucial issue of identification was error (see People v. Carney, supra ), reversal is not warranted.
At the close of this exceedingly fair trial, the court carefully instructed the jury on those factors to be considered in resolving the issue of identification. Thereafter, the jurors...
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...the failure to marshall the facts in charging knowledge constituted reversible error on the basis of this record (see People v. Vargas, 74 A.D.2d 859, 425 N.Y.S.2d 370). Finally on the basis of the appellant's numerous prior arrests this court rejects the contention that the one year senten......
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...(see People v. Gaines, 80 A.D.2d 561, 435 N.Y.S.2d 346; People v. Merriman, 79 A.D.2d 619, 433 N.Y.S.2d 475; People Vargas, 74 A.D.2d 859, 425 N.Y.S.2d 370; People v. Carney, 73 A.D.2d 972, 424 N.Y.S.2d 243). Nor did the court specify to which elements of the People's case did its instructi......
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...its deliberations, it was read the testimony of the complainant (People v. Watson, 78 A.D.2d 685, 432 N.Y.S.2d 247; People v. Vargas, 74 A.D.2d 859, 425 N.Y.S.2d 370). ...
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People v. Watson
...during its deliberations, the jury was read all of the testimony of the two witnesses who identified defendant (see People v. Vargas, 74 A.D.2d 859, 425 N.Y.S.2d 370). We have examined the remaining contentions raised by the defendant and find them to be without ...